ARBITRARY AND SUMMARY EXECUTIONS

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United Nations Office at Vienna
Centre for Social Development and Humanitarian Affairs
MANUAL QrN THE
EFFECTIVE PREVENTION
AND INVESTIGATION OF
EXTRA-LEGAL,- ARBITRARY
AND SUMMARY EXECUTIONS
133673
U.s. Department of Justice
National Institute of Justice
This document has been reproduced exactly as received from Ihe
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In this document are those of the authors and do not necessarily
represent the official position or pOlicies of the National Institute of
Justice.
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United Nations
to the National Criminal Justice Reference Service (NCJRS).
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United Nations
New York, 1991
Symbols of United Nations documents are composed of capital letters combined with figures. Mention of such a symbol indicates a reference to a United
Nations 1ocument.
Material in this pUblication may be freely quoted. or reprinted, but
acknowledgement is requested, together with a copy of the publication containing the quotation or reprint.
ST/CSDHA/12
UNITED NATIONS PUBLICATION
Sales No.: E.91.IV.1
ISBN 92+130142-4
01500P
- 1 CONTENTS
INTRODUCTION
3
Chapter
I.
INTERNATIONAL HUMAN RIGHTS STANDARDS •••••••••••••• ,...........
A.
B.
C.
II.
III.
United' Nations............................................
1. General Assembly .••••••.••••••••••••••••••••••••••••••
2. Economic and Social Council...........................
3. Commission on Human Rights •.•••••••.••••••••••••••••••
4. Human Rights Committee................................
5. Committee against Torture ••••••.••••••••••••••••••••••
6. Committee on Crime Prevention and Control •••••••••••••
7. United Nations congresses on the prevention of
crime and the treatment of offenders •••••••••••..•••.•
International Labour Organisation •••••••••••••••••••••••••
Regional organizations .•••••••••••.•••••••••••••••••••••••
1. Inter-American Commission on Human Rights ••••••.•..•.•
2. African Commission on Human and People's
Rights •••••.•••••••••••••••..••..••••••••••••••••.••.•
3. European Commission on Human Rights •••.•••.•••••••••••
4
4
4
6
6
9
9
10
11
11
11
11
12
12
THE ELABORATION OF INTERNATIONAL STANDARDS FOR EFFECTIVE
PREVENTION OF EXTRA-LEGAL, ARBITRARY AND SUM}~RY
EXECUTIONS •••.•••.••••••••••••••••••••••••••••••••••••••••••••
13
MODEL PROTOCOL FOR A LEGAL INVESTIGATION OF EXTRA-LEGAL,
ARBITRARY AND SUMMARY EXECUTIONS ("MINNESOTA PROTOCOL") .••••••
15
A.
B.
C.
Introduction. • • •• • • • • • • • . • . • • . • • • • • • • • • • • • • • • • • • • • • • • ••• • •
Purposes of an inquiry....................................
Procedures for an inquiry.................................
1. Processing of the crime scene •••••••••••••.••••.••••.•
2. Processing of the evidence ••••••••••••••••••••••••••••
3. Avenues to investigation ••••••••.•••••••••••••••••••••
4. Personal testimony....................................
D. Commission of inquiry ..•.•••.•.•••.•••••••••••••••••••••••
1. Factors triggering a special investigation •••••.•..•••
2. Defining the scope of the inquiry.....................
3. Power of the commission ••.•••.••••••••••••••••••••••••
4. Membership qualifications •••.•••.•.••••••••.•••.••..••
5. Number of commiss ioners •.•••....•..•..•.•••.....•...•.
6. Choosing a commission counsel.........................
7. Choosing expert advisors •••••.••.••••••.••••••.••••.•.
8. Choosing investigators ••.•••••.••.••••••••.•••..•.•••.
9. Protection of witnesses ..••...••..•••..•••..••.••••.••
10. Proceedings. . . . . . • . . • • • . • • • • • • • • . . • . • • • • • • • • • . • . • • • . • .
11. Notice of inquiry •.••....••...•...•...••••.••••.•••.••
12. Receipt of evidence .••••.•••..••..•••.•••••••...•...•.
13. Rights of parties •••••...••••••.••••.•.•••••••.••••.••
14. Evaluation of evidence •...••...•....•.••.•••.••.•.....
15. The report of the commission..........................
16. Response of the Government •••...•..••...•.••..•..•..••
15
16
16
16
17
1.8
1.8
18
19
19
20
20
20
21
21
21
21
21
22
22
22
22
23
23
- 2 -
IV.
V.
MODEL AUTOPSY PROTOCOL •••..••••••••.•..••.•••••.••••.•••••••••
24
A.
B.
Introduction. • • . • • • • • • • • • . • • • . • • • . • • • • • • • • • • • . . • • • • • • • . • • •
Proposed model autopsy protocol...........................
1. Scene inves tigation .•••.•••••.••••.••••••.••••.••.••••
2. Autopsy. • . • • • • • • • • • • • • • . • • • . • • .• • • • • • • • • • • • • • • • • . . • • • •
24
25
25
26
MODEL PROTOCOL FOR DISINTERMENT AND ANALYSIS OF SKELETAL
REMAINS.......................................................
34
A.
B.
Introduction..............................................
Proposed model skeletal analysis protocol.................
1. Scene investigation...................................
2. Laboratory analysis of skeletal remains ••••.••••••••.•
3. Final report .•••..•••..••••••.••••.•.••••..•••••••••••
4. Repository for evidence •••••••••.••••••••••..•••••••••
34
34
34
37
38
39
Annexes
I.
II.
III.
Principles on the effective prevention and investigation of
extra-legal, arbitrary and summary executions •••••••••••••••••••
41
Postmortem detection of torture
47
Drawings of parts of human body for identification of torture ..•
49
- 3 -
INTRODUCTION
In many countries throughout the world, extra-legal, arbitrary and summary
executions take place undocumented and undetected. These executions include:
(a) political assassinations; (b) deaths resulting from torture or ill-treatment
in prison or detention; (c) death resulting from enforced "disappearances";
(d) deaths resulting from the excessive use of force by 1aw-enforce~ent personnel; (e) executions without due process; and (f) acts of genocide. The failure
to detect and disclose these executions to the international community is a
major obstacle to the rendering of justice for past executions and the prevention of future executions.
This Manual is the result of several years of analysis, research and drafting undertaken because of extra-legal, arbitrary and summary executions throughout the world. Its purpose is to supplement the "Principles on the effective
prevention and investigation of extra-legal, arbitrary and summary executions",
adopted by the Economic and Social Council in its resolution 1989/65 of
24 May 1989, on the recommendation of the Committee on Crime Prevention and
Control, at its tenth session, held in Vienna, from 5 to 16 February 1990.
Concurrent to the elaboration of the Principles, there was concerted
action by non-governmental organizations to provide additional guidance in the
area of effective prevention and investigation of extra-legal, arbitrary and
summary executions, by offering technical advice on the meaningful implementation of the Principles.
The preparation of this Manual was greatly facilitated by the Minnesota
Lawyers International Human Rights Committee. At its initiative, an international group of experts in forensic science, lawyers, human rights experts
and others volunteered their time and expertise to assist in the preparation
of the draft Principles and to provide appropriate follow-up for their implementation, the contents of which constitute the major part of the Manual.
In this connection, special acknowledgement is due to the following:
Medical examiners and forensic pathu1ogists: Dr. Jorgen L. Thomsen,
University Institute of Forensic Medicine and Committee of Concerned Forensic
Scientists and Physicians for the Documentation of Human Rights Abuses (CCFS),
Copenhagen, Dr. Clyde Snow, Forensic Anthropology, Dr. Lindsey Thomas,
Dr. Garry Peterson, Dr. Robert Kirschner, Deputy Chief Medical Examiner, Cook
County Medical Examiner's Office, Chicago, Dr. Fred Jordan, Chief Medical
Examiner, Oklahoma City;
Lawvers: Thomas Johnson, Penny Parker, Robert P. Sands, Gregory Sands,
Professor David Weissbrodt, University of Minnesota Law School;
Non-governmental organizations: Barbara Frey, Executive Director,
Minnesota Lawyers International Human Rights Committee, Sonia Rosen, Staff
Attorney, Minnesota Lawyers International Human Rights Committee, Marie Bibus,
Janet Gruschow, Science and Human Rights Program, American Association for the
Advancement of Science;
Other specialists: Eric Stover, former Director, Science and Human
Rights Program, American Association for the Advancement of Science,
Dr. John J. Fitzpatrick, Chair, Division of Trauma Radiology, Cook County
Hospital, Chicago, Dr. Karen Ramey Burns, Crime Lab Scientist, Division of
Forensic Sciences, Georgia Bureau of Investigation, Decatur.
Appreciation is also expressed to the American Association for the
Advancement of Science and the Ford Foundation for their contributions to
this pUblication.
- 4 -
I.
INTERNATIONAL HUMAN RIGHTS STANDARDS
A number of international standards outlaw arbitrary deprivation of life.
The Universal Declaration of Human Rights, adopted by the General Assembly in
its resolution 217 A (III) of 10 December 1948, states that "everyone has the
right to life, liberty, and secu:dty of person". The International Covenant
on Civil and Political Rights, adopted by the General Assembly in its resolution 2200 A (XXI) of 16 December 1966, which was promulgated in 1966 and has
been ratified by 87 States, provides in article 6, that "no one shall be arbitrarily deprived of his life". Prohibitions of extra-legal, arbitrary and
summary executions are also found in the following instruments: the American
Convention on Human Rights, article 4(1): "No one shall be arbitrarily
deprived of his life"; the African Charter on Human and Peoples' Rights,
article ll: "Every human being shall be entitled to respect for his life and
the integrity of his person. No one may be arbitrarily deprived of this
right"; and the European Convention for the Protection of Human Rights and
Fundamental Frl'!edoms, article 2(1): "No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by laws".
The international organs and bodies that have been active in implementing
the right to be free from arbitrary deprivation of life include the General
Assembly, the Economic and Social Council, the Committee on Crime Prevention
and Control, the Commission on Human Rights and its Special Rapporteur on
summary or arbitrary executions, the Sub-Commission on Prevention of Discrimination and Protection of Minorities, the Human Rights Committee and the
International Labour Organisation; the Inter-American Commission on Human
Rights; the African Commission on Human and People's Rights; and the European
Commission on Human Rights. Significant action taken by these international
bodies to prevent extra-legal, arbitrary and summary executions are discussed
below.
A.
1.
United Nations
General Assembly
The General Assembly of the United Nations, by its resolution 35/172 of
15 December 1980, adopted for the first time a specific resolution on arbitrary or summary executions in which, concerned at the occurrence of the
executions that are widely regarded as being politically motivated, Member
States concerned were urged to respect as a minimum standard the content of
the relevant provisions of the International Covenant on Civil and Political
Rights so as to guarantee the most careful legal procedures and the greatest
possible safeguards. In resolution 36/22 of 9 November 1981, the General
Assembly, bearing in mind the results of the Sixth United Nations Congress on
the Prevention of Crime and the Treatment of Offenders (see section A.7,
below), condemned the practice of summary executions and arbitrary executions
and invited all Member States, specialized agencies, regional, interregional
organizations and relevant non-governmental organizations to answer the
Secretary-General's request for their views and observations concerning the
problem of arbitrary executions and summary executions to be reported to the
Committee on Crime Prevention and Control at its seventh session in 1982 (see
section A.6, below). In resolutions 37/182 of 17 December 1982, 38/96 of
16 December 1983, 39/110 of 14 December 1984 and 40/143 of 13 December 1985,
the Assembly charted a course of action aimed at strengthening the United
Nations position against surrmary or arbitrary executions.
- 5 -
On 4 December 1986, the General Assembly adopted resolution 41/144,
strongly condemning the large number of summary or arbitrary execut~'Pns that
continued to take place in various parts of the world. The Assembly also
endorsed the conclusion of the Special Rapporteur on Summary or Arbitrary
Executions, appointed by the Economic and Social Council in 1982, that it was
necessary to develop international standards designed to ensure that investigations were conducted in all cases of suspicious death including provisions
for an adequate autopsy (E/CN.4/l986/2l).
In its resolution 42/141 of 7 December 1987, the Assembly took an additional step towards encouraging the drafting of international standards by
inviting the Special Rapporteur to continue to receive information from
appropriate United Nations bodies and other international organizations, to
examine the elements to be included in such standards and to report to the
Commission on Human Rights on progress made in that respect. The Assembly,
therefore, not only recognized that a gap existed in international protection
against arbitrary or summary executions, but also stimulated its subsidiary
bodies to take an active interest in filling that gap. In doing so, the
Assembly has been instrumental in advancing the process of promulgating such
new standards. In its resolution 43/151 of 8 December 1988, the Assembly
invited Governments, international organizations and non-governmental organizations to support the efforts made in United Nations forums towards the
adoption of international standards for the proper investigation of all deaths
in suspicious circumstances, including provision for adequate autopsy.
Further, the Assembly endorsed the elements proposed by the Special Rapporteur
for inclusion in such international standards. Keeping that in mind, the
Assembly, by resolution 44/162 of 15 December 1989 endorsed the Principles
adopted by the Economic and Social Council and, in resolution 44/159 of the
same date, encouraged Governments, international organizations and nongovernmental organizations to organize training programmes and support
projects with a view to training or educating la\~ enforcement officials in
human rights issues connected to their work and appealed to the international
community to support endeavours to that end. 1/
In parallel to this work, the Assembly adopted by resolution 39/46, annex,
of 10 December 1984, the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, which became effective on 26 June 1987. In
its preamble, the Convention referred to the Declaration on the Protection of
All Persons from being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the Assembly in resolution 3452 (XXX),
annex, of 9 December 1975, on the recommendation of the Fifth United Nations
Congress on the Prevention of Crime and the Treatment of Offenders.
That Convention not only specifies that the States Parties will outlaw
torture in their national legislation, but also notes explicitly that no order
from a superior or exceptional circumstance may be invoked as a justification
of torture. The Convention also introduces two new elements of particular
significance to efforts by the United Nations to combat torture. The first is
that, henceforth a torturer may be prosecuted wherever he is to be found in
the territory of any State Party to the Convention, since the Convention
specifies that persons alleged to have committed acts of torture may be tried
in any State Party or that they may be extradited so that they may be tried in
the State Party where they committed their crimes. The second new element is
that the Convention contains a provision that allows for an international
inquiry if there is reliable information indicating that torture is being
systematically practised in the territory of a State Party to the Convention.
Such an inquiry may include a visit to the State Party concerned, with its
agreement.
- 6 -
The States Parties to the Convention also pledge to take effective legislative, administrative, judicial or other measures to prevent acts of torture
in any territory under their jurisdiction. No exceptional circumstances whatsoever, whether a state of war, internal political instability or any other
public emergency, may be invoked as a justification of torture.
Under the Convention, no State Party may expel, return or extradite a
person to another State where there are substantial grounds for believing that
he would be in danger of being subjected to torture.
The States Parties agree to afford one another the greatest measure of
assistance in connection with criminal proceedings brought forward in respect
of acts of torture, and to ensure that education and information regarding the
prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and
other persons who may be involved in the custody, interrogation or treatment
of any individual subjected to any form of arrest, detention or imprisonment.
The States Parties also undertake to ensure in their legal systems that
the victims of acts of torture obtain redress and have an enforceable right to
fair and adequate compensation, including the means for as full a rehabilitation as possible. Z/
2.
Economic and Social Council
The Economic and Social Council of the United Nations has repeatedly
addressed the question of arbitrary or summary executions. For example, the
Council has continuously and consistently appealed to Governments, regional
intergovernmental organizations and non-governmental organizations to take
effective action to combat and eliminate summary or arbitrary executions,
including extra-legal executions. The Council has also encouraged and endorsed
a number of initiatives to be taken by the human rights and criminal justice
bodies of the United Nations, which are described below, aimed at eliminating
that alarming and deplorable practice.
3.
Commission on Human Rights
Sub-Commission on Prevention of Discrimination and Protection of Minorities of
the Commission of Human Rights
In 1987 the Working Group on Detention annexed to its report
(E/CN.4/Sub.2/l987/1S) to the Sub-Commission on Prevention of Discrimination
and Protection of Minorities of the Commission on Human Rights an explanatory
paper on the elaboration of norms guaranteeing an impartial investigation into
arbitrary execution or suspicious violent death, in particular during detention. Creating norms for autopsy procedures was noted as being particularly
useful in determining whether or not a death was suspicious. That report
contained also draft standards for the investigation of arbitrary executions,
submitted by the International Commission of Jurists.
In its report for 1988 (E/CN.4/l989/3 - E/CN.4/Sub.2/l988/4S), the SubCommission by decision 1988/109 requested the Secretary-General to provide it
with a document describing the work being done in other international forlUlls
on international standards for adequate investigations into all cases of suspicious deaths in detention as well as adequate autopsy.
In 1989, the Sub-Commission considered a report of the Secretary-General
(E/CN.4/Sub.2/l989/2S) sunIDlarizing the activities of various United Nations
- 7 bodies concerning international standards for investigating suspicious deaths,
including adequate autopsy.
Two Special Rapporteurs have been appointed at the request of the Commission on Human Rights.
Special Rapporteur on summary or arbitrary executions
In March 1982, the Economic and Social Council by its resolution 1982/35
of 7 May 1982 authorized a Special Rapporteur to study the questions related
to summary or arbitrary executions. The Special Rapporteur, Mr. Amos Wako of
Kenya, was appointed in 1982 at the request of the Commission on Human Rights,
and immediately began the task of collecting information from around the world
on summary or arbitrary executions. He has since prepared eight annual reports
addressing a wide range of issues concerning summary or arbitrary executions
and informing the Commission of his ac~ivities, including urgent appeals to
Governments.
In 1986, the Special Rapporteur included in his report (E/CN.4/l986/2l)
to the Commission on Human Rights, consideration of the measures to be taken
when a death occurs in custody.
"One of the ways in which Governments can show that they want
this abhorrent phenomenon of arbitrary or summary executions eliminated is by investigating, holding inquests, prosecuting and punishing
those found guilty. There is therefore a need to develop international standards designed to ensure that investigations are conducted into all cases of suspicious death and in particular those at
the hands of the law enforcement agencies in all situations. Such
standards should include adequate autopsy. A death in any type of
custody should be regarded as prima facie a summary or arbitrary
execution, and appropriate investigation should iwmediate1y be made
to confirm or rebut the presumption. The results of investigations
should be made public (para. 209)."
Referring to the Principles adopted by the Economic and Social Council in
its resolution 1989/65 of 24 Nay 1989, the Special Rapporteur stated that "his
position with regard to the implementation of his mandate is strongly supported
by this resolution". He will now refer to the Principles in his annual examination of alleged incidents of suwmary or arbitrary executions. The Special
Rapporteur stated further that "any GovernreGnt's practice that fails to reach
the standards set out in the Principles may be regarded as an indication of
the Government's responsibility, even if no government officials are found to
be directly involved in the acts". He recommended that Governments review
national laws and regulations, as well as the practice of judicial and law
enforcement authorities, with a view to securing effective implementation of
the standards set by Council resolution 1989/65.
This report focused on "the absence of investigation, prosecution and/or
punishment in cases of death in suspicious circumstances" (E/CN.4/l986/2l).
The Special Rapporteur noted that Governments were extremely reluctant to
investigate deaths where military or law enforcement agencies were involved.
Often, in those cases, as noted by other writers, autopsies or inquest
proceedings either did not take place or crucial information, such as evidence
of torture, was omitted. J/
In response to the Special Rapporteur's report of 1987 (E/CN.4/l987/20),
the Commis3ion on Human Rights welcomed his recommendation that Governments
- 8 -
should review the machinery for investigation of deaths under suspicious
circumstances in order to secure an impartial, independent investigation on
such deaths, including an adequate auto.psy. The Commission also welcomed the
Special Rapporteur's recommendation that international organizations should
make a concerted effort to draft international standards designed to ensure
proper investigation by appropriate authorities into all cases of suspicious
death, including provisions for adequate autopsy.
In his 1988 report (E/CN.4/1988/22) to the Commission, the Special
Rapporteur devoted an entire section to a disc1.lssion on the importance of
standards for proper investigation into all cases of suspicious deaths. In
particular, he outlined seven elements that should be included as a minimum in
such standards: promptness, impartiality, thoroughness, protection, representation of the family of the victim, pUblication of the findings and an independent commission of l.nquiry. The Commission endorsed' these recommendations.
By its resolution 1989/64 of 8 March 1989, the Commission took note with
appreciation of the subsequent report of the Special Rapporteur (E/CN.4/l989/25)
and again welcomed his recommendations with a view to eliminating summary or
arbitrary executions. Following that with a further report (E/CN.4/1990/22),
the Special Rapporteur reviewed new developments in summary or arbitrary
executions. He took note of a particularly alarming trend, which was rapidly
spreading, of death threats directed, in particular, against persons who played
key roles in defending human rights and achieving social and criminal justice.
At the same time, however, he noted considerable achievements made by the
General Assembly and the Economic and Social Council in areas directly or
indirectly related to his mandate.
Special Rapporteur on torture
The Commission on Human Rights decided, in its resolution 1985/33, to
appoint a Special Rapporteur to examine questions relevant to torture, requesting him t.o seek and receive credible and reliable information on such questions
and to respond to that information without delay. This decision was subsequently approved by the Council in its decision 1985/144 of 30 May 1985.
The mandate of the Special Rapporteur on questions relevant to torture
requests him to report to the Commission, which is composed of government
representatives, on the phenomenon of torture in general. To this end, he
establishes contact with Governments and asks them for information on the
legislative and administrative measures taken to prevent torture and to remedy
its consequences whenever it occurs.
The Special Rapporteur is also expected to respond effectively to the
credible and reliable information that comes before him. This provision of
the Special Rapporteur's mandate has led to the urgent action procedure, which
considerably increases the effectiveness of his activities.
The Special Rapporteur's task extends to all States Members of the United
Nations and to all States with observer status. He corresponds with Governments, requesting them to inform him of the measures they have taken or plan
to take to prevent or combat torture. He also receives requests for. urgent
action, which he brings to the attention of the Governments concerned in order
to ensure protection of the individual's right to physical and mental integrity. In addition, he holds consultations with government representatives
who wish to meet with him and, in accordance with his mandate, makes'consultation visits to some parts of the world.
- 9 For his future activities, the Special Rapporteur recommended to the
Commission on Human Rights that:
Detention incommunicado should be declared illegal;
Any person who is arrested should be brought without delay before a
competent judge, who should rule immediately on the lawfulness of his
arrest and authorize him to see a lawyer;
Any person arrested should undergo a medical examination;
Any detainee who dies should be autopsied in the presence of a representative of his family;
External experts should regularly inspect places of detention.
4.
Human Rights Committee
The Human Rights Committee, established under the International Covenant
on Civil and. Political Rights, article 28, has created a body of jurisprudence
in individual cases of arbitrary executions in custody, particularly in connection with the implementation of the relevant provisions of the Optional
Protocol to that Convention. In the case of Eduardo Bleier, for example, the
Committee considered the allegations by Bleier's mother and'wife that he had
been held incommunicado and tortured to death by the Uruguayan military. AI
The Committee refused to accept the Uruguayan Government's denial at face
value. Instead, upon receiving evidence from fellow prisoners who had witnessed Bleier's torture, the Committee concluded that he had been tortured in
violation of article 7 of the International Covenant on Civil and Political
Rights, and that there were serious reasons to believe that the Uruguayan
authorities had killed Bleier in violation of article 6 of the International
Covenant. The Committee urged the Uruguayan Government to bring to justice
any persons responsible for Bleier's death, disappearance and ill-treatment,
and to pay compensation to his family for his death.
A further example was that, in April 1985, the Human Rights Committee
found the arbitrary executions of 15 opponents to the militar.y ruler of
Suriname in December 1982 to constitute an intentional violation of
article 6(1) of the Covenant. The Committee urged the Government to take
effective steps to investigate the executions, to bring the responsible
persons to justice, to pay compensati(n to the families and to ensure future
protection of the right to life. ~I
5.
Committee against Torture
The implementation of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment is monitored by the Committee
against Torture, which consists of 10 experts of high moral standing and
recognized competence in the field of human rights. Under article 19 of the
Convention, the States parties submit to the Committee, through the SecretaryGeneral of the United Nations, reports on the measures they have taken under
the Convention. Each report is considered by the Committee, which may make
general comments and include such information in its annual report to the
States parties and to the General Assembly.
Under article 20 of the Convention, if the Committee receives reliable
information which appears to it to contain well-founded indications that
torture is being systematically practised in the territory of a State Party,
- 10 the Committee invites that State Party to co-operate in the examination of the
information and to this end to submit observations with regard to the information concerned. The Committee may, if it decides that this is warranted,
designate one or more of its members to make a confidential inquiry and to
report to the Committee urgently. In agreement with that State Party, such an
inquiry may include a visit to its territory.
After examining the findings of its member or members submitted to it,
the Committee transmits these findings to the State Party concerned together
with any comments or suggestions which seem appropriate in view of the situation.
All the proceedings of the Committee under article 20 are confidential
and, at all stages of the proceedings, the co-operation of the State Party is
sought. After such proceedings have been completed, the Committee may, after
consultations with the State Party concerned, decide to include a summary
account of the results of the proceedings in its annual report to the other
States Parties and to the General Assembly.
6.
Committee on
C~ime
Prevention and Control
The General Assembly in its resolution 35/172 of 15 December 1980
requested the Secretary-General to report to the Committee on Crime Prevention
and Control at its seventh session, held at Vienna, from 15 to 24 March 1982,
on the question of arbitrary or summary executions. By resolution 36/22 of
9 November 1981, the Assembly requested the Committee to examine that question
with a view to making recommendations. Having reviewed the report submitted
by the Secretary-General (E/AC.57/l982/4 and Corr.l and Add.l), the Committee
recommended to the Economic and Social Council the adoption of a resolution on
arbitrary or summary executions.
The Council, in its resolution 1983/24 of 26 May 1983, strongly condemned
and deplored the brutal practice of summary executions and decided that the
Committee should further study the question of death penalties that do not
meet the acknowledged minimum legal guarantees and safeguards, as contained in
the International Covenant on Civil and Political Rights and other international instruments.
The Committee at its eighth session, held at Vienna, from 21 to
30 March 1984, elaborated a number of safeguards guaranteeing protection of
the rights. of those facing the death penalty. The Council adopted the
safeguards recommended by the Committee in resolution 1984/50, annex, of
25 May 1984.
The Council, in its resolution 1986/10 of 21 May 1986, section VI,
requested that the Secretary-General should submit a report on extra-legal,
arbitrary and summary executions .to the Committee on Crime Prevention and Control at its tenth session in 1988, held at Vienna, from 22 to 31 August 1988.
The Secretary-General submitted a report entitled "Extra-legal, arbitrary and
summary executions ·and measures ror their prevention and investigation"
(E/AC.57/l988/S). On the basis of discussion at the Committee, including
statements made by non-governmental organizations, Q/ the Committee recommended
to the Council the adoption of a draft containing the Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions. The Committee has been entrusted with the function of periodically
rp.viewing the implementation of these Principles.
- 11 -
7.
United Nations congresses on the prevention of crime
and the treatment of offenders
In 1980, the Sixth United Nations Congress on the Prevention of Crime and
the Treatment of Offenders in its Caracas Declaration 11 stressed, inter alia,
that "criminal policy and the administration of justice should be based on
principles that will guarantee the equality of everyone before the law without
any discrimination, as well as the effective right of defence and the existence
of judicial organs that are equal to the task of providing speedy and fair
justice and of ensuring greater security and protection of the rights and
freedoms of all people". In reso1ut:ir,'n 5 on extra-legal executions, the
Congress called upon all Governments to take effective measures to prevent
extra-legal executions and urged all organs of the United Nations dealing with
questions of crime prevention and human rights to take all possible action to
bring such acts to an end.
In 1985, the Seventh United Nations Congress. also adopted a resolution on
extra-legal, arbitrary and summary executions calling upon all Governments to
take urgent and incisive action to investigate such acts, wherever they may
occur, to punish those found guilty and to take all other measures necessary
to prevent those practices. ~I
B.
International Labour Organisation
The Committee on Freedom of Association of the Governing Body of the
International Labour Organisation (ILO) reviews complaints alleging the
executions of trade unionists around the world. Regarding the deaths of
Rudolf Vierra, Mark Pearlman, and Michael Hammer in E1 Salvador, the ILO
Committee requested that the Government of E1 Salvador transmit the results of
the judicial inquiry underway and pursue actively its investigations into
these murders. 21
C.
Regional organizations
1. Inter-American Commission on Human Rights
The Inter-American Commission on Human Rights has taken an approach
similar to the Human Rights Committee of the United Nations in cases involving
arbitrary executions. For example, in Case No. 7481 of 8 March 1982, regarding executions by a military regiment in Bolivia in 1980, the Inter-American
Commission found violations of common article 3 of the Geneva Conventions,
which had been ratified by the Bolivian Government. The Commission recommended, among other remedies, that the Bolivian Government "order a fuller and
impartial investigation to determine responsibility for the excess and abuses
... ". lQl
In two landmark decisions, the Inter-American Court of Human Rights found
the Government of Honduras in violation of articles 4 (right to life); 5 (right
to humane treatment); and 7 (right to personal liberty) of the American Convention on Human Rights. 111 The Court in the Velasquez Rodriguez Case and the
Godinez Cruz Case, 121 ruled that in cases of "disappearances", "the duty [on
the part of the Government of Honduras] to investigate facts of this type continues as long as there is uncertainty about the fate of the person disappeared", and ordered Honduras to pay damages to the families of the victims.
Furthermore, the Inter-American Court adopted measures, taken in response to
the assassination of two important witnesses, insisting upon the protection of
witnesses appearing as part of the investigation.
- 12 -
2.
African Commission on Human and People's Rights
The recently established African Commission on Human and People's Rights,
a subsidiary body of the Organization of African Unity, has not yet considered
any cases involving the arbitrary deprivation of life. The Commission's mandate stems from the African Charter of Human and People's Rights, which
provides inter alia that the Commission may enter into written communication
with a State Party of the Charter when it is alleged by another State party
that the former has violated the provisions of the Charter.
3.
European Commission on
Hl~an
Rights
The European Commission on Human Rights has reviewed fewer cases involving
the right to life than the Inter-American Commission. In one case, Cyprus v.
Turkey, the European Commission considered whether the Turkish army had engaged
in mass executions of civilians at the time of the invasion of Cyprus. The
Commission found sufficient eyewitnesses and second-hand testimony from refugees to conclude that there were "strong indications of executions committed
on a substantial scale". 13/ The Committee of Ministers took note of the
Commission's report and urged talks between the Greek and Turkish communities
on Cyprus, but took no further action on the matter.
- 13 II. THE ELABORATION OF INTERNATIONAL STANDARDS FOR. EFFECTIVE
PREVENTION OF EXTRA-LEGAL, ARBITRARY AND SUMMARY EXECUTIONS
The need for an international scientific protocol for the investigation
of deaths has been recognized for several years. In 1979, the Danish Medical
Group of Amnesty International expressed a desire for established international
rules f.or the completion of death certificates. In 1984, J. L. Thomsen
observed that forensic medicine was being practised in different ways, and
that common guidelines and definitions would facilitate communications. 14/
Non-governmental organizations emphasized the need for developing and
adopting international standards as a practical outcome of their missions to
countries where extra-legal, arbitrary and summary executions were alleged to
take place. For example, an Amnesty International mission to one country
found in 1983 that the procedures of the authorities for recording and investigating violent deaths were totally inadequate for determining the causes of
more than 40,000 deaths that had occ,urred between 1979 and 1984, or for identifying the parties responsible. The procedures were even inadequate to
determine the precise number of these deaths.
Similarly, a delegation from the American Association for the Advancement
of Science sent to another country to assist in the identification of thousands of persons abducted or killed between 1976 and 1983 concluded that the
identification of the remains was beyond the capabilities of local institutions, and recommended the establishment of a national investigative centre
with well-trained forensic scientists and a director with independent
investigative powers. The delegation, however, was optimistic that even the
identification of the remains of a small number of the "disappeared" and a
determination of the causes of their deaths could be a significant deterrent
if those responsible for the deaths could be identified and brought to justice.
Even when Governments order inquests, investigators often find it difficult to ascertain the facts surrounding arbitrary executions. Eyewitness
accounts may be hard to obtain because witnesses fear reprisals or because the
only witnesses were those conducting executions themselves. Assassins often
conceal their crimes by making their victims "disappear". As a result, bodies
of victims are usually found months or years later, buried in shallow, unmarked
graves. Disposal in this manner often complicates identification of the body
and determination of the cause and manner of death. In some cases, the natural
decomposition of the body's soft tissue erases evidence of trauma such as
bruising. stab wounds or gunpowder burns. In others, the perpetrators
deliberately mutilate the person, either before or after death, in an attempt
to thwart identification or to intimidate others.
Most countries have a system for investigating the cause of death in
cases with unusual or suspicious circumstances. Such a procedure provides
some reassurance that unexplained deaths do not remain unexplained and that
the perpetrator is tried by a competent court established by law. In some
countries, however, these procedures have broken down or have been abused,
particularly where the death may have been caused by the police, the army or
other government agents. In these cases, a thor~ugh and independent investigation is rarely done. Evidence that could be used to prosecute the offender
is ignored or covered up, and those involved in the executions go unpunished.
To address the need for developing uniform standards, the international
community began to formulate a set of principles and medicolegal standards for
the investigation and prevention of extra-legal, arbitrary and summary executions. That work, which dates back to the beginning of the 1980s, made
- 14 considerable advances with the preparation of the Principles on the Effective
Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions
recommended by the Committee on Crime Prevention and Control at its tenth
session in Vienna in 1988. The Principles set forth in annex I were adopted
by the Economic and Social Council in its resolution 1989/65, annex, of
24 May 1989 and endorsed by the General Assembly in its resolution 44/162 of
15 December 1989.
It is hoped that observance of the prov1s1ons of the Principles will lead
to a decrease of extra-legal, arbitrary and summary executions in two ways.
First, use of the adopted procedures during death investigations should produce
the evidence necessary for increased detection and disclosure of other executions. The persons responsible for such executions can then be held accountable through judicial or political sanctions. Secondly, adoption of the
standards will also provide international observers with guidelines to evaluate
investigations bf suspicious deaths. Non-compliance with the standards can be
publicized and pressure brought against non-complying Governments, especially
where extra-legal, arbitrary and summary executions are believed to have occurred. If a Government refuses to establish impartial inquest procedures in such
cases, it might be inferred that the Government is hiding such executions. The
fear of condemnation by the international community may encourage government
compliance with the inquest standards, which, in turn, should reduce extralegal, arbitrary and summary executions.
An additional benefit of compliance with these standards is that a Government suspected of involvement in an extra-legal, arbitrary and summary execution would have an opportunity of satisfying the international community, as
well as its own people, that it was not responsible for the death of a particular person or persons. A Government's compliance with these standards,
regardless of the outcome of an inquiry, may increase confidence in the rule
of law, including the comnlitment of Governments to human rights.
- 15 III. MODEL PROTOCOL FOR A LEGAL INVESTIGATION OF EXTRA-LEGAL,
ARBITRARY AND SUMMARY EXECUTIONS ("MINNESOTA PROTOCOL")
A.
Introduction
Suspected extra-legal, arbitrary and summary executions can be investigated under established national or local laws and can lead to criminal proceedings. In some cases, however, investigative procedures may be inadequate
because of the lack of resources and expertise or because the agency assigned
to conduct the investigation may be partial. Hence, such criminal proceedings
are less likely to be brought to a successful outcome.
The following comments may enable those conducting investigations and
other parties, as appropriate, to obtain some in-depth guidance for conducting
investigations. Such guidance in a general way, has been set out in the
Principles on the Effective Prevention and Investigation of Extra-Legal,
Arbitrary and Summary Executions (see annex I, below, paragraphs 9-17). The
guidelines set forth in this proposed model protocol for a legal investigation
of extra-legal, arbitrary and summary executions are not binding. Instead,
the model protocol is meant to be illustrative of methods for carrying out the
standards enumerated in the Principles.
By definition, this model protocol cannot be exhaustive as the variety of
legal and political arrangements escapes its application. Also, investigative
techniques vary from country to country and these cannot be standardized in
the form of internationally adopted principles. Consequently, additional
commehts may be relevant for the practical implenlentation of the Principles.
Sections Band C of this model protocol contain guidelines for the
investigation of all violent, sudden, unexpected or suspicious deaths,
including suspected extra-legal, arbitrary and summary executions. These
guidelines apply to investigations conducted by law enforcement personnel and
by members of an independent commission of inquiry.
Section D provides guidelines for establishing a special independent commission of inquiry. These guidelines are based on the experiences of seve~al
countries that have established independent commissions to investigate alleged
arbitrary executions.
Several considerations should be taken into account when a Government
decides to establish an independent commission of inquiry. First, persons
subject to an inquiry should be guaranteed the minimum procedural safeguards
protected by international law* at all stages of the investigation. Secondly,
investigators should have the support of adequate technical and administrative
personnel, as well as access to objective, impartial legal advice to ensure
that the investigation will produce admissible evidence·for later criminal
proceedings. Thirdly, investigators should receive the full scope of the
Government's resources and powers. Finally, investigators should have the
power to seek help from the international community of experts in law,
medicine and forensic sciences.
*In particular, all persons must be guaranteed the due process rights set
forth in article 14 of the International Covenant on Civil and Political
Rights.
- 16 The fundamental principles of any viable investigation into the causes of
death are competence, thoroughness, promptness and impartiality of the investigation, which flow from paragraphs 9 and 11 of the Principles. These elements
can be adapted to any legal system and should guide all investigations of
alleged extra-legal, arbitrary and summary executions.
B.
Purposes of an inquiry
As set out in paragraph 9 of the Principles, the broad purpose of an
inquiry is to discover the truth about the events leading to the susp~c~ous
death of a victim. To fulfil this purpose, those conducting the inquiry
shall, at a minimum, seek:
(a)
To identify the victim;
(b) To recover and preserve evidentiary material related to the death to
aid in any potential prosecution of those responsible;
(c) To identify possible witnesses and obtain statements from them concerning the death;
(d) To determine the cause, manner, location and time of death, as well
as any pattern or practice that may have brought about the death;
(e) To distinguish between. natural death, accidental death, suicide and
homicide;
(f)
To identify and apprehend the person(s) involved in the death;
(g) To bring the suspected perpetrator(s) before a competent court
established by law.
C.
Procedures of an inquiry
One of the most important aspects of a thorough and impartial investigation of an extra-legal, arbitrary and summary execution is the collection and
analysis of evidence. It is essential to recover and preserve physical evidence, and to iYlterview potential witnesses so that the circumstances surrounding a suspicious death can be clarified.
1.
~essing
of the crime scene
Law enforcement personnel and other non-medical investigators should
co-ordinate their efforts in processing the scene with those of medical
personnel. Persons conducting an investigation should have access to the
scene where the body was discovered and to the scene where the death may have
occurred:
(a) The area around the body should be closed off.
and their staff should be allowed entry into the area;
Only investigators
(b) Colour photographs of the victim should be taken as these, in comparison with black and white photographs, may reveal in more detail the nature
and circumstances of the victim's death;
(c) Photographs should be taken of the scene (interior and exterior) and
of any other physical evidence;
--------------
- 17 (d) A record should be made of the body position and condition of the
clothing;
(e)
The following factors may be helpful in estimating the time of death:
(i)
Temperature of the body (warm, cool, cold);
(ii)
Location and degree of fixation of lividity;
(iii)
(iv)
Rigidity of the body;
Stage of its decomposition;
(f) Examination of the scene for blood should take place. Any samples of
blood, hair, fibres and threads should be collected and preserved;
(g) If the victim appears to have been sexually assaulted, this fact
should be recorded;
(h)
A record should be made of any vehicles found in the area;
(i) Castings should be made and preserved of pry marks, tyre or shoe
impressions, or any other impressions of an evidentiary nature;
(j) Any evidence of weapons, such as guns, projectiles, bullets and
cartridge cases, should be taken and preserved. When applicable, tests for
gunshot residue and trace metal detection should be performed;
(k)
Any fingerprints should be located, developed, lifted and preserved;
(1) A sketch of the crime scene to scale should be made showing all
relevant details of the crime, such as the location of weapons, furniture,
vehicles, surrounding terrain, including the position, height and width of
items, and their relationship to each other;
(m) A record of the identity of all persons at the scene should be made,
including complete names, addresses and telephone numbers;
(n) Information should be obtained from scene witnesses, including those
who last saw the decedent alive, when, where and under what circumstances;
(0) Any relevant papers, records or documents should be saved for evidentiary use and handwriting analysis.
2.
Processing of the evidence
(a) The body must be identified by reliable witnesses and other objective methods;
(b) A report should be made detailing any observations at the scene,
actions of investigators and disposition of all evidence recovered;
(c)
Property forms listing all evidence should be completed;
(d) Evidence must be properly collected, handled, packaged, labelled and
placed in safekeeping to prevent contamination and loss of evidence.
- 18 3.
Avenues to investigation
(a) What evidence is there, if any, that the death was premeditated and
intentional, rather than accidental? Is there any evidence of torture?
(b)
What weapon or means was used and in what manner?
(c)
How many persons were involved in the death?
(d) What other crime, if any, and the exact details thereof, was committed during or associated with the death?
(e) What was the relationship between the suspected perpetrator(s) and
the victim prior to the death?
(f) Was the victim a member of any political, religious, ethnic or social
group(s), and could this have been a motive for the death?
4.
Personal testimony
(a) Investigators should identify and interview all potential witnesses
to the crime, including:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
Suspects;
Relatives and friends of the victim;
Persons who knew the victim;
Individuals residing or located in the area of the crime;
Persons who knew or had knowledge of the suspects;
Persons who may have observed either the crime, the scene, the
victim or the suspects in the week prior to the execution;
Persons having knowledge of possible motives;
(b) Interviews should take place as soon as possible and should be
written and/or taped. All tapes should be transcribed and maintained;
(c) Witnesses should be interviewed individually, and assurance should
be given that any possible means of protecting their safety before, during and
after the proceedings will be used, if necessary.
D.
Commission of inquiry
In cases where government involvement is suspected, an objective and
impartial investigation may not be possible unless a special commission of
inquiry is established. A commission of inquiry may also be necessary where
the expertise of the investigators is called into question. This section sets
out factors that give rise to a presumption of government complicity, partiality or insufficient expertise on the part of those conducting the investigation. Anyone of these presumptions should trigger the creation of a special
commission of inquiry. It then sets out procedures that can be used as a
model for the creation and function of commissions of inquiry. The procedures
were derived from the experience of major inquiries that have been mounted to
investigate executions or similarly grievous cases of human rights violations.
- 19 -
Establishing a commission of inquiry entails defining the scope of the inquiry,
appointing commission members and staff, determining the type of proceedings to
be followed and selecting procedures governing those proceedings, and authorizing the commission to report on its findings and make recommendations. Each of
these areas will be covered separately.
1.
Factors triggering a special investigation
Factors that support a belief that the Government was involved in the
execution, and that should trigger the creation of a special impartial investigation commission include:
(a) Where the political views, religious or ethnic affiliation, or social
status of the victim give rise to a suspicion of government involvement or complicity in the death because of anyone or combination of the following
factors:
(i)
Where the victim was last seen alive in police custody or
detention;
(ii)
Where the modus operandi is recognizably attributable to
government-sponsored death squads;
(iii)
(iv)
Where persons in the Government or associated with the
Government have attempted to obstruct or delay the
investigation of the execution;
Where the physical or testimonial evidence essential to the
investigation becomes unavailable.
(b) As set out in paragraph 11 of the Principles, an independent
commission of inquiry or similar procedure should also be established where
a routine investigation is inadequate for the following reasons:
(i)
(H)
(Hi)
(iv)
(v)
The lack of expertise; or
The lack of impartiality; or
The importance of the matter; or
The apparent existence of a pattern of abuse; or
Complaints from the family of the victim about the above
inadequacies or other substantial reasons.
2.
~efining
the scope of the
inqu~
Governments and organizations establishing commissions of inquiry need
to define the scope of the inquiry by including terms of reference in their
authorization. Defining the commission's 'terms of reference can greatly
increase its success by giving legitimacy to the proceedings, assisting
commission members in reaching a consensus on the scope of inquiry and
providing a measure by which the commission's final report can be judged.
Recommendations for defining terms of reference are as follows:
(a) They should be neutrally framed so that they do not suggest a
predetermined outcome. To be neutral, terms of reference must not limit
investigations in areas that might uncover government responsibility for
extra-legal, arbitrary and summary executions;
- 20 -
(b) They should state precisely which events and issues are to be
investigated and addressed in the commission's final report;
(c) They should provide flexibility in the scope of inquiry to ensure
that thorough investigation by the commission is not hampered by overly
restrictive or overly broad terms of reference. The necessary flexibility may
be accomplished, for example by permitting the commission to amend its terms
of reference as necessary. It is important, however, that the commission keep
the public informed of any amendments to its charge.
3.
Power of the commission
The principles set out in a general manner the powers of the commission.
More specifically such a commission would need the following:
(a) To have the authority to obtain all information necessary to the
inquiry, for example, for determining the cause, manner and time of death,
including the authority to compel testimony under legal sanction, to order
the production of documents including government and medical records, and to
protect witnesses, families of the victim and other sources;
(b)
To have the
~uthority
to issue a public report;
(c) To have the authority to prevent the burial or other disposal of the
body until an adequate postmortem examination has been performed;
(d) To have the authority to conduct on-site visits, both at the scene
where the body was discovered and at the scene where the death may have
occurred;
(e) To have the authority to receive evidence from witnesses and organizations located outside the country.
4.
Membership qualifications
Commission members should be chosen for their recognized impartiality,
competence and independence as individuals:
Impartiality. Commission members should not be closely associated with
any individual, government entity, political party or other organization
potentially implicated in the execution or disappearance, or an organization
or group associated with the victim, as this may damage the commission's
credibility.
Competence. Commission members must be capable of evaluating and weighing
evidence, and exercising sound judgement. If possible, commissions of inquiry
should include individuals with expertise in law, medicine, forensic science
and other specialized fields, as appropriate.
Independence. Members of the commission should have a reputation in
their community for honesty and fairness.
5.
Number of commissioners
The Principles do not contain a provision on the number of members of the
commission, but it would not be unreasonable to note that objectivity of the
investigation and commission's findings may, among other things, depend on
whether it has three or more members rather than one or two. Investigations
- 21 into extra-legal, arbitrary and summary executions should, in general, not be
conducted by a single commissioner. A single, isolated commissioner will
generally bo limited in the depth of investigation he or she can conduct
alone. In addition, a single commissioner will have to make controversial and
important decisions without debate, and will be particularly vulnerable to
governmental and other outside pressure.
6.
Choosing a commission counsel
Commissions of inquiry should have impartial, expert counsel. Where the
commission is investigating allegations of governmental misconduct, it would
be advisable to appoint counsel outside the Ministry of Justice. The chief
counsel to the commission should be insulated from political influence, as
through civil service tenure, or status as a wholly independent member of the
bar.
7.
Choosing expert advisors
The investigation will often require expert advisors. Technical expertise
in such areas as pathology, forensic science and ballistics should be available
to the commission.
8.
Choosing investigators
To conduct a completely impartial and thorough investigation, the commission will almost always need its own investigators to pursue leads and to
develop evidence. The credibility of an inquiry will be significantly enhanced
to the extent that the commission can rely on its own investigators.
9.
Protection of witnesses
(a) The Government shall protect complainants, witnesses, those conducting the investigation, and their families from violence. threats of violence or
any other form of intimidation;
(b) If the commission concludes that there is a reasonable fear of
persecution. harassment, or harm to any witness or prospective witness, the
commission may find it advisable:
(i)
(ii)
(iii)
(iv)
To hear the evidence in Camera;
To keep the identity of the informant or witness confidential;
To use only such evidence as will not present a risk of
identifying the witness;
To take any other appropriate measures.
10.
~eedinga
It follows from general principles of criminal procedure that hearings
should be conducted in public, unless in Camera proceedings are necessary to
protect the safety of a witness. In Camera proceedings should be recorded and
the closed, unpublished record kept in a known location.
Occasionally, complete secrecy may be required to encourage testimony,
and the commission will want to hear witnesses privately, informally and
without recording testimony.
- 22 11.
Notice of inquiry
Wide notice of the establishment of a commission and the subject of the
inquiry should be given. The notice should also include an invitation to
submit relevant information and/or '~ritten statements to the commission, and
instructions to persons wishing to testify. Notice can be disseminated
through newspapers, magazines, radio, television, leaflets and posters.
12.
Receipt of
ev~
Power to compel evidence. As emphasized in Principle 10 (see annex I),
commissions of inquiry should have the power to compel testimony and production
of documents: in this context, Principle 10 refers to "the authority to oblige
officials" allegedly involved in extra-legal, arbitrary and summary executions.
Practically, this authority may involve the power to impose fines or sentences
if the Government or individuals refuse to comply.
Use of witness statenlents. Commissions of inquiry should invite persons
to testify or submit written statements as a first step in gathering evidence.
Written sta.tements may become an important source of evidence if their authors
become afraid to testify, cannot travel to proceedings, or are otherwise
unavailable.
Use of evidence from other proceedin~. Commissions of inquiry should
review other proceedings that could provide relevant information. For example,
the commission should obtain the findings from an inquest into cause of death,
conducted by a coroner or medical examiner. Such inquests generally rely on
postmortem or autopsy examinations. A commission of inquiry should review the
inquest and the results of the autopsy presented to the inquest to determine
if they were conducted thoroughly and impartially. If the inquest and autopsy
were so conducted, the coroner's findings are entitled to be given great
weight.
13.
Rights of parties
As mentioned in Principle 16. families of the deceased and their legal
shall be informed of, and have access to, any hearing and to
all information relevant to the investigation, and shall be entitled to
present evidence. This particular emphasis on the role of the family as a
party to the proceedings implies the specially important role the family's
interests play in the conduct of the investigation. However, all other
interested parties should also have the opportunity at being heard. As mentioned in Principle 10, the investigative body shall be entitled to issue
summons to witnesses, including the officials allegedly involved and to demand
the production of evidence. All these witnesses should be permitted legal
counsel if they are likely to be harmed by the inquiry, for example, when
their testimony could expose them to criminal charges or civil liability.
Witnesses may not be compelled to testify against themselves regarding matters
unrelated to the scope of inquiry.
~epresentatives
There should be an opportunity for the effective questioning of witnesses
by the commission. Parties to the inquiry should be allowed to submit written
questions to the commission.
14.
Evaluation of evidence
The commission shall assess all information and evidence it receives to
determine its relevance, veracity, reliability and ~robity. The commission
~
23 -
should evaluate oral testimony based upon the demeanour and overall credibility
of the witness. Corroboration of evidence from several sources will increase
the probative value of such evidence. The reliability of hearsay evidence
from several sources will increase the probative value of such evidence. The
reliability of hearsay evidence must be considered carefully before the commission should accept it as fact. Testimony not tested by cross-examination must
also be viewed with caution. ~~ testimony preserved in a closed record
or not recorded at all is often not subjected to cross-examination and therefore may be given less weight.
15.
The report of the commission
As stated in Erinciple 17, the commission should issue a public report
within a reasonable period of time. It may be added that where the commission
is not unanimous in its findings, the minority commissioner(s) should file a
dissenting opinion.
From the practical experience gathered, commission of inquiry reports
should contain the following information:
(a)
The scope of inquiry and terms of reference;
(b)
The procedures and methods of evaluating' evideillce;
(c) A list of all witnesses who have testLCied, except for those whose
identities are withheld for protection and who' have testified in Camera, and
exhibits received in evidence;
(d) The time and place of each sitting (this might be annexed to the
report) ;
(e) The background to the inquiry such as relevant social, political and
economic condit:i.ons;
(f) The specific events that occurred and the evioence upon which such
findings are based;
(g)
(h)
of fact;
(i)
The ,law upon which the commission relied;
The commission's conclusions based upon applicable law and findings
Recommendations based upon the findings of the commission.
16.
Response of the Government
The Government should either reply publicly to the commis~ion's report or
should indicate what steps i t intends to take in res.ponse to the report.
- 24 -
IV.
MODEL AUTOPSY PROTOCOL
A.
Introduction
Difficult or sensitive cases should ideally be the responsibility of an
objective, experienced, well-equipped and well-trained prose~tor (the person
performing the autopsy and preparing the written report) who is separate from
any potentially involved political organization or entity. Unfortunately, this
ideal is often unattainable. This proposed model autopsy protocol includes a
comprehensive checklist of the steps in a basic forensic postmortem examination
that should be followed to the extent possible given the resources available.
Use of this autopsy protocol will permit early and final resolution of potentially controversial cases and will thwart the speculation and innuendo that
are fueled by unanswered, partially answered or poorly answered questions in
the investigation of an apparently suspicious death.
This model autopsy protocol is intended to have several applications and
may be of value to the following categories of individuals:
(a) Experienced forensic pathologists may follow this model autopsy
protocol to ensure a systematic examination and to facilitate meaningful
positive or negative criticism by later observers. While trained pathologists
may justifiably abridge certain aspects of the postmortem examination or
written descriptions of their findings in routine cases, abridged examinations
or reports are never appropriate in potentially controversial cases. Rather,
a systematic and comprehensive examination and report are required to prevent
the omission or loss of important details;
(b) General pathologists or other physicians who have not been trained
in forensic pathology but are familiar with basic postmortem examination
techniques may supplement their customary autopsy procedures with this model
autopsy protocol. It may also alert them to situations in which they should
seek consultation, as written material cannot replace the knowledge gained
through experience;
(c) Independent consultants whose expertise has been requested in
observing, performing or reviewing an autopsy may cite this model autopsy
protocol and its proposed minimum criteria as a basis for their actions or
opinions;
(d) Governmental authorities, international political organizations, law
enforcement agencies, families or friends of decedents, or representatives of
potential defendants charged with responsibility for a death may use this
model autopsy protocol to establish appropriate procedures for the postmortem
examination prior to its performance;
(e) Historians, journalists, attorneys, judges, other physicians and
representatives of the public may also use this model autopsy protocol as a
benchmark for evaluating an autopsy and its findings;
(f) Governments or individuals who are attempting either to establish or
upgrade their medicolegal system for investigating deaths may use this model
autopsy protocol as a guideline, representing the procedures and goals to be
incorporat~d into an ideal medicolegal system.
While performing any medicolegal death investigation, the prosector should
collect information that will establish the identity of the deceased, the time
and place of death, the cause of death, and the manner or mode of death (homicide, suicide, accident or natural).
- 25 It is of the utmost importance that an autopsy performed following a controversial death be thorough in scope. The documentation and recording of the
autopsy findings should be equally thorough so as to permit meaningful use of
the autopsy results (see annex II, below). It is important to have as few
omissions or discrepancies as possible, as proponents of different interpretations of a case may take advantage of any perceived shortcomings in the
investigation. An autopsy performed in a controversial death should meet
certain minimum criteria if the autopsy report is to be proffered as meaningful
or conclusive by the prosector, the autopsy's sponsoring agency or governmental
unit, or anyone else attempting to make use of such an autopsy's findings or
conclusions.
This model autopsy protocol is designed to be used in diverse situations.
Resources such as autopsy rooms, X-ray equipment or adequately trained personnel are not available everywhere. Forensic pathologists must operate under
widely divergent political systems. In addition, social and religious customs
vary widely throughout the world; an autopsy is an expected and routine procedure in some areas, while it is abhorred in others. A prosector, therefore,
may not always be able to follow all of the steps in this protocol when performing autopsies. Variation from this protocol may be inevitable or even
preferable in some cases. It is suggested, however, that any major deviations,
with the supporting reasons, should be noted.
It is important that the body should be made available to the prosector
for a minimum of 12 hours in order to assure an adequate and unhurried examination. Unrealistic limits or conditions are occasionally placed upon the
prosector with respect to the length of time permitted for the examination or
the circumstances under which an examination is allowed. When conditions are
imposed, the prosector should be able to refuse to perform a compromised, examination and should prepare a report explaining this position. Such a refusal
should not be interpreted as indicating that an examination was unnecessary or
inappropriate. If the prosector decides to proceed with the examination notwithstanding difficult conditions or circumstances, he or she should include
in the autopsy report an explanation of the limitations or impediments.
Certain steps in this model autopsy protocol have been emphasized by the
use of boldface type. These represent the most essential elements of the
protocol.
B.
Proposed model autopsy protocol
1.
Scene investigation
The prosector(s) and medical investigators should have the right of
access to the scene where the body is found. The medical personnel should be
notified immediately to assure that no alteration of the body has occurred.
If access to the scene was denied, if the body was altered or if information
was withheld, this should be stated in the prosector's report.
A system for co-ordination between the medical and non-medical investigators (e.g. law enforcement agencies) should be established. This should
address such issues as how the prosector will be notified and who will be in
charge of the scene. Obtaining certain types of evidence is often the role of
the non-medical investigators, but the medical investigators who have access
to the body at the scene of death should perform the following steps:
(a)
Photograph the body as it is found and after it has been moved;
(b) Record the body position and condition, including body warmth or
coolness, lividity and rigidity;
- 26 (c)
Protect the deceased's hands, e.g. with paper bags;
(d) Note the ambient temperature. In cases where the time of death is
an issue, rectal temperature should be recorded and any insects present should
be collected for forensic entomological study. Which procedure is applicable
will depend on the length of the apparent p-ostmortem interval;
(e)
Examine the scene for blood, as this may be useful in identifying
.suspects;
(f)
Record the identities of all persons at the scene;
(g) Obtain information from scene witnesses, including those who last
saw the decedent alive, and when, where and under what circumstances. Interview any emergency medical personnel who may have had contact with the body;
(h) Obtain identification of the body and other pertinent information
from friends or relatives. Obtain the deceased's medical history from his or
her physician(s) and hospital charts, including any previous surgery, alcohol
or drug use, suicide attempts and habits;
(i) Place the body in a body pouch or its equivalent.
after the body has been removed from it;
Save this pouch
(j) Store the body in a secure refrigerated location so that tampering
with the body and its evidence cannot occ~;
(k) Make sure that projectiles, guns, knives and other weapons are
available for examination by the responsible medical personnel;
(1) If the decedent was hospitalized prior to death, obtain admission or
blood specimens and any X-rays, and review and summarize hospital records;
(m) Before beginning the autopsy, become familiar with the types of
torture or violence that are prevalent in that country or locale (see
annex III).
The following Protocol should be followed during the autopsy:
(a) Record the date, starting and finishing times, and place of the
autopsy (a complex autopsy may take as long as an entire working day);
(b) Record the name(s) of the prosector(s), the participating
assistant(s), and all other persons present during the autopsy, including the
medical and/or scientific degrees and professional, political or administrative
affiliations(s) of each. Each person's role in the autopsy should be indicated, and one person should be designated as the principal prosector who will
have the authority to direct the performance of the autopsy. Observers and
other team members are subject to direction by, and should not interfere with,
the principal p'rosector. The time(s) during the autopsy when each person is
present should be included. The use of a "sign-in" sheet is recommended;
(c) Adequate photographs are crucial for thorough documentation of
autopsy findings:
- 27 -
(i)
Photographs should be in colour (transparency or negative/
print), in focus, adequately illuminated. and taken by a
professional or good quality camera. Each photograph should
contain a ruled reference scale, an identifying case name or
number. and a sample of standard grey. A description of the
camera (inclUding the lens "f-number" and focal length), film
and the lighting system must be included in the autopsy report.
If more than one camera is utilized, the identifying information should be recorded for each. Photographs should also
include information indicating which camera took each picture,
if more than one camera is used. The identity of the person
taking the photographs should be recorded;
(ii)
Serial photographs reflecting the course of the external
examination must be included. Photograph the body prior to and
following undressing. washing or cleaning and shaving;
(iii)
Supplement close-up photographs with distant and/or immediate
range photographs to permit orientation and identification of
the close-up photographs;
(iv)
Photographs should be comprehensive in scope and must confirm
the presence of all demonstrable signs of injury or disease
commented upon in the autopsy report;
(v)
Identifying facial .features should be portrayed (after washing
or cleaning the body). with photographs of a full frontal
aspect of the face. and right and left profiles of the face
with hair in normal position and with hair retracted. if
necessary. to reveal the ears;
(d) Radiograph the body.before it is removed from its pouch or
wrappings. X-rays should be repeated both before and after undressing the
body. Fluoroscopy may also be performed. Photograph all X-ray films;
(i)
Obtain dental X-rays,even if identification has been
established in other ways;
(ii)
Document any skeletal system injury by X-ray. Skeletal X-rays
may also record anatomic defects or surgical procedures. Check
especially for fractures of the fingers, toes and other bones
in the hands and feet. Skeletal X-rays may also aid in the
identification of the deceased, by detecting identifying
characteristics, estimating age and height, and determining
sex and race. Frontal sinus films should also be taken, as
these can be particularly useful for identification purposes;
(iii)
Take X-rays in gunshot cases to aid in locating the
projectile(s). Recover, photograph and save any projectile or
major projectile fragment that is seen on an X-ray. Other
radio-opaque objects (pacemakers. artificial joints or valves.
knife fragments etc.) documented with X-rays should also be
removed, photographed and saved;
(iv)
Skeletal X-rays are essential in children to assist in determining age and developmental status;
- 28 (e) Before the clothing is removed, examine the body and the clothing.
Photograph the clothed body. Record any jewellery present;
(f) The clothing should be carefully removed over a clean sheet or body
pouch. Let the clothing dry if it is bloody or wet. Describe the clothing
that is removed and label it in a permanent fashion. Either place the clothes
in the custody of a responsible person or keep them, as they may be useful as
evidence or for identification;
(g) The external exrunination, focusing on a search for external evidence
of injury is, in most cases, the most important portion of the autopsy;
(i)
(ii)
(iii)
(iv)
Photograph all surfaces - 100 per cent of the body area. Take
good quality, well-focused, colour photographs with adequate
illUlll1ination;
Describe and document the means used to make the identification.
Examine the body and record the deceased's apparent age, length,
weight, sex, head hair style and length, nutritional status,
muscular development and colour of skin, eyes and hair (head,
facial and body);
In children, measure also the head circumference, crown-rump
length and crown-heel length;
Record the degree, location and
mortis;
fi~at.ion
of rigor and livor
(v)
Note body warmth or .coo1ness and state of preservation; note
any decomposition changes, such as skin slippage. Evaluate the
general condition of the body and note adipocere formation,
maggots, eggs or anything else that suggests the time or place
of death;
(vi)
With all injuries, record the size, shape, pattern, location
(related to obvious anatomic landmarks), colour, course, direction, depth and structure involved. Attempt to distinguish
injuries resulting from therapeutic measures from those
unrelated to medical treatment. In the description of projectile wounds, note the presence or absence of soot, gunpowder,
or singeing. If gunshot residue is present, document it
photographically and save it for analysis. Attempt to
determine whether the gunshot wound is an entry or exit wound.
If an entry wound is present and no exit wound is seen, the
projectile must be found and saved or accounted for. Excise
wound tract tissue samples for microscopic examination. Tape
together the edges of knife wounds to assess the blade size and
characteristics;
(vii)· Photograph all injuries, taking two colour pictures of each,
labelled with the autopsy identification number on a scale that
is oriented parallel or perpendicular to the injury. Shave
hair where necessary to clarify an injury, and take photographs
before and after shaving. Save all hair removed from the site
of the injury. Take photographs before and after washing the
site of any injury. Wash the body only after any blood or
material that may have come from an assailant has been
collected and saved;
- 29 (viii)
(ix)
(x)
Examine the skin. Note and photograph any scars, areas 9f
keloid formation, tattoos, prominent moles, areas of increased
or decreased pigmentation, and anything distinctive or unique
such as birthmarks. Note any bruises and incise them for
delineation of their extent. Excise them for microscopic examination. The head and genital area should be checked with
special care. Note any injection sites or puncture wounds
and excise them to use for toxicological evaluation. Note any
abrasions and excise them; microscopic sections may be useful
for attempting to date the time of injury. Note any bite
marks; these should be photographed to record the dental
pattern, swabbed for saliva testing (before the body is washed)
and excised for microscopic examination. Bite marks should also
be analysed by a forensic odontologist, if possible. Note any
burn marks and attempt to determine the cause (burning rubber,
a cigarette, electricity, a blowtorch, acid, hot oil etc.).
Excise any suspicious areas for microscopic examination, as it
may be possible to distinguish microscopically between burns
caused by electricity and those caused by heat;
Identify and label any foreign object that is recovered,
including its relation to specific injuries. Do not scratch
the sides or tip of any projectiles. Pho~ograph each projectile and large projectile fragment with an identifying label,
and then place each in a sealed, padded and labelled container
in order to maintain the chain of custody;
Collect a blood specimen of at least 50 cc from a subclavian
or femoral vessel;
(xi)
Examine the head and external scalp, bearing in mind that
injuries may be hidden by the hair. Shave hair where necessary.
Check for fleas and lice, as these may indicate unsanitary conditions prior to death. Note any alopecia as this may be caused
by malnutrition. heavy metals (e.g. thallium), drugs or traction. Pull, do not cut, 20 representative head hairs and save
them, as hair may also be useful for detecting some drugs and
poisons;
(xii)
Examine the teeth and note their condition. Record any that
are absent, loose or damaged, and record all dental work
(restorations, fillings etc.), using a dental identification
system to identify each tooth. Check the gums for periodontal
disease. Photograph dentures, if any, and save them if the
decedent's identity is unknown. Remove the mandible and
maxilla if necessary for identification. Check the inside of
the mouth and note any evidence of trauma, injection sites,
needle marks or biting of the lips, cheeks or tongue. Note
any articles or substances in the mouth. In cases of suspected
sexual assault, save oral fluid or get a swab for spermatozoa
and acid phosphatase evaluation. (Swabs taken at the tooth-gum
junction and samples from between the teeth provide the best
specimens for identifying spermatozoa.) Also take swabs from
the oral cavity for seminal fluid typing. Dry the swabs quickly
with cool, blown air if possible, and preserve them in clean
plain paper envelopes. If rigor mortis prevents an adequate
examination, the masseter muscles may be cut to permit better
exposure;
- 30 -
(xiii)
Examine the face and note if it is cyanotic or if petechiae
are present;
a.
Examine the eyes and view the conjunctiva of both the
globes and the eyelids. Note any petechiae in the upper or
lower eyelids. Note any scleral icterus. Save contact
lenses, if any are present. Collect at least 1 ml of
vitreous humor from each eye;
b.
Examine the nose and ears and note any evidence of trauma,
haemorrhage or other abnormalities. Examine the tympanic
membranes;
(xiv)
Examine the neck extenlally on all aspects and note any
contusions, abrasions or petechiae. Describe and document
injury patterns to differentiate manual, ligature and hanging
strangulation. Examine the neck at the conclusion of the
autopsy, when the blood has drained out of the area and the
tissues are dry;
(xv)
Examine all surfaces of the extremities: arms, forearms,
wrists, hands, legs and feet, and note any "defence" wounds.
Dissect and describe any 1nJuries. Note any bruises about
the wrists or ankles that may suggest restraints such as handcuffs or suspension. Examine the medial and lateral surfaces
of the fingers, the anterior forearms and the backs of the
knees for bruises;
(xvi)
Note any broken or missing fingernails. Note any gunpowder
residue on the hands, document photographically and save it for
analysis. Take.fingerprints in all cases. If the decedent's
identity is unknown and fingerprints cannot be obtained, remove
the "glove"'of the skin, if present. Save the fingers if no
other means of obtaining fingerprints is possible. Save fingernail clippings and any under-nail tissue (nail scrapings).
Examine the fingernail and toenail beds for evidence of objects
having been pushed beneath the nails. Nails can be removed by
dissecting the lateral margins and proximal base, and then the
undersurface of the nails can be inspected. If this is done,
the hands must be photographed before and after the nails are
removed. Carefully examine the soles of the feet, noting any
evidence of beating. Incise the soles to delineate the extent
of any injuries. Examine the palms and knees, looking
especially for glass shards or lacerations;
(xvii)
Examine the external genitalia and note the presence of any
foreign material or semen. Note the size, location and number
of any abrasions or contusions. Note any injury to the inner
,thighs or peri-anal area. Look for peri-anal burns;
(xviii)
In cases of suspected sexual assault, examine all potentially
involved orifices. A speculum should be used to examine the
vaginal walls. Collect foreign hair by combing the pubic hair.
Pull and save at least 20 of the deceased's own pubic hairs,
including roots. Aspirate fluid from the vagina and/or rectum
for acid phosphatase, blood group and spermatozoa evaluation.
Take swabs from the same areas for seminal fluid typing. Dry
the swabs quickly with cool, blown air if possible. and
preserve them in clean plain paper envelopes;
- 31 (xix)
The length of the back, the buttocks and extremities including
wrists and ankles must be systematically incised to look for
deep ~nJuries. The shoulders, elbows, hips and knee joints
must also be incised to look for ligamentous injury;
(h) The internal examination for internal evidence of injury should
clarify and augment the external examination;
(i)
Be systematic in the internal examination. Perform the examination either by body regions or by systems, including the
cardiovascular, respiratory, biliary, gastrointestinal,
reticuloendothelial, genitourinary, endocrine, musculoskeletal,
and central nervous systems. Record the weight, size, shape,
colour and consistency of each organ, and note any neoplasia,
inflammation, anomalies, haemorrhage, ischemia, infarcts,
surgical procedures or injuries. Take sections of normal and
any abnormal areas of each organ for microscopic examination.
Take samples of any fractured bones for radiographic and
microscopic estimation of the age of the fracture;
(ii)
Examine the chest. Note any abnormalities of the breasts.
Record any rib fractures, noting whether cardiopulmonary
resuscitation was attempted. Before opening, check for
pneumothoraces. Record the thickness of subcutaneous fat.
Immediately after opening the chest, evaluate the pleural
cavities and the pericardial sac for the presence of blood or
other fluid, and describe and quantify any fluid present. Save
any fluid present until foreign objects are accounted for.
Note the presence of air embolism, characterized by frothy
blood within the right atrium and right ventricle. Trace any
injuries before removing the organs. If blood is not
available at other sites, collect a sample directly from the
heart. Examine the h'eart, noting degree and location of
coronary artery disea/;e or other abnormalities. Examine the
lungs, noting any abnormalities;
(iii)
Examine the abdomen and record the amount of subcutaneous
fat. Retain 50 grams of adipose tissue for toxicological
evaluation. Note the interrelationships of the organs. Trace
any ~nJuries before removing the organs. Note any fluid or
blood present in the peritoneal cavity, and save it until
foreign objects are accounted for. Save all urine and bile
for toxicologic examination;
(iv)
Remove, examine and record the quantitative information on the
liver, spleen, pancreas,"kidneys and adrenal glands. Save at
least 150 grams each of kidney and liver for toxicological
evaluation. Remove the gastrointestinal tract and examine the
contents. Note any food present and its degree of digestion.
Save the contents of the stomach. If a more detailed toxicological evaluation is desired, the contents of other regions of
the gastrointestinal tract may be saved. Examine tl.~ rectum
and anus for burns, lacerations or other injuries. Locate and
retain any foreign bodies present. Examine the aorta, inferior
vena cava and iliac vessels;
- 32 -
(v)
Examine the organs in the pelvis, including ovaries,
fallopian tubes, uterus, vagina, testes, prostate gland,
seminal vesicles, urethra and urinary bladder. Trace any
injuries before removing the organs. Remove these organs
carefully so as not to injure them artifactually. Note any
evidence of previous or current pregnancy, miscarriage or
delivery. Save any foreign objects within the cervix, uterus,
vagina, urethra or rectum;
(vi)
Palpate the head and examine the external and internal
surfaces of the scalp, noting any trauma or haemorrhage. Note
any skull fractures. Remove the calvarium carefully and note
epidural and subdural haematomas. Quantify, date and save any
haematomas that are present. Remove the dura to examine the
internal surface of the skull for fractures. Remove the
brain and note any abnormalities. Dissect and describe any
injuries. Cerebral cortical atrophy, whether focal or
generalized, should be specifically commented upon;
(vii)
(viii)
Evaluate the cerebral vessels. Save at least 150 grams of
cerebral tissue for toxicological evaluation. Submerge the
brain in fixative prior to examination, if this is indicated;
Examine the neck after the heart and brain have been removed
and the neck vessels have been drained. Remove the neck
organs, taking care not to fracture the hyoid bone. Dissect
and describe any injuries. Check the mucosa of the larynx,
pyriform sinuses and esophagus, and note any petechiae, edema
or burns caused by corrosive substances. Note any articles or
substances within the lumina of these structures. Examine the
thyroid gland. Separate and examine the parathyroid glands, if
they are readily identifiable;
(ix)
Dissect the neck muscles, noting any haemorrhage. Remove all
organs, including the tongue. Dissect the muscles from the
bones and note any fractures of the hyoid bone or thyroid or
cricoid cartilages;
(x)
Examine the cervical, thoracic and lumbar spine. Examine the
vertebrae from their anterior aspects and note any fractures,
dislocations, compressions or haemorrhages. Examine the
vertebral bodies. Cerebrospinal fluid may be obtained if
additional toxicological evaluation is indicated;
(xi)
In cases in which spinal injury is suspected, dissect and
describe the spinal cord. Examine the cervical spine
anteriorly and note any haemorrhage in the paravertebral
muscles. The posterior approach is best for evaluating high
cervical injuries. Open the spinal canal and remove the spinal
cord. Make transverse sections every 0.5 cm and note any
abnormali ties;
(i) After the autopsy has been completed, record which specimens have
been saved. Label all specimens with the name of the deceased, the autopsy
identification number, the date and time of collection, the name of the
prosector and the contents. Carefully preserve all evidence and record the
chain of custody with appropriate release forms;
t·
- 33 (i)
(ii)
(iii)
Perform appropriate toxicologic tests and retain portions of
the tested samples to permit retesting;
a.
Tissues: 150 grams of liver and kidney should be saved
routinely. Brain, hair and adipose tissue may be saved for
additional studies in cases where drugs, poisons or other
toxic sUbstances are suspected;
b.
Fluids: 50 cc (if possible) of blood (spin and save serum
in all or some of the tubes), all available urine, vitreous
humor and stomach contents should be saved routinely. Bile,
regional gastrointestinal tract contents and cerebrospinal
fluid should be saved in cases where drugs, poisons or toxic
substances are suspected. Oral, vaginal and rectal fluid
should be saved in cases of suspected sexual assault;
Representative samples of all major organs, including areas of
normal and any abnormal tissue, should be processed histological~~ and stained with hematoxylin and eosin (and other stains
as indicated). The slides, wet tissue and paraffin blocks
should be kept indefinitely;
Evidence that must be saved includes:
a.
All foreign obj~cts, including projectiles, projectile
fragments, pellets, knives and fibres. Projectiles must
be subjected to ballistic analysis;
b.
All clothes and personal effects of the deceased, worn by
or in the possession of the deceased at the time of death;
c.
Fingernails and under nail scrapings;
d.
Hair, foreign and pubic, in cases of suspected sexual
assault;
e.
Head hair, in cases where the place of death or location of
the body prior to its discovery may be an issue;
(j) After the autopsy, all unretained organs should be replaced in the
body, and the body should be well embalmed to facilitate a second autopsy in
case one is desired at some future point;
(k) The written autopsy report should address those items that are
emphasized in boldface type in the protocol. At the end of the autopsy report
should be a summary of the findings and the cause of death. This should
include the prosector's comments attributing any injuries to external trauma,
therapeutic efforts, postmortem change, or other causes. A full report should
be given to the appropriate authorities and to the deceased's family.
- 34 -
V.
MODEL PROTOCOL FOR DISINTERMENT AND ANALYSIS OF SKELETAL REMAINS
A.
Introduction
This proposed model protocol for the disinterment and analysis of skeletal
remains includes a comprehensive checklist of the steps in a basic forensic
examination. The objectives of an anthropological investigation are the same
as those of a medicolegal investigation of a recently deceased person. The
anthropologist must collect information that will establish the identity of
the deceased, the time and place of death, the cause of death and the manner
or mode of death (homicide, suicide, accident or natural). The approach of
the anthropologist differs, however, because of the nature of the material to
be examined. Typically, a prosector is required to examine a body, whereas an
anthropologist is required to examine a skeleton. The prosector focuses on
information obtained from soft tissues, whereas the anthropologist focuses on
information from hard tissues. Since decomposition is a continuous process,
the work of both specialists can overlap. An anthropologist may examine a
fresh body when bone is exposed or when bone trauma is a factor. An experienced prosector may be required when mummified tissues are present. In some
circumstances, use of both this protocol and the model autopsy protocol may be
necessary to yield the maximum information. The degree of decomposition of
the body will dictate the type of investigation and, therefore, the protocol(s) to be followed.
The questions addressed by the anthropologist differ from those pursued
in a typical autopsy. The anthropological investigation invests more time and
attention to basic questions such as the following:
(a)
Are the remains human?
(b)
Do they represent a single individual or several?
(c) What was the decedent's sex, race, stature, body weight, handedness
and physique?
(d) Are there any skeletal traits or anomalies that could serve to
positively identify the decedent?
The time!, cause and manner of death are also addressed by the anthropologist, but the margin of error is usually greater than that which can be
achieved by an autopsy shortly after death.
This model pro~ocol may be of use in many diverse situations. Its application may be affected, however, by poor conditions, inadequate financial
resources or lack of time. Variation from the protocol may be inevitable or
even preferable in some cases. It is suggested, however, that any major
deviations, with the supporting reasons, should be noted in the final report.
B.
Proposed model skeletal analysis protocol
1.
Scene investigation
A burial recovery should be handled with the same exacting care given to
a crime-scene search. Efforts should be co-ordinated between the principal
investigator and the consulting physical anthropologist 01' archaeologist.
Human remains are frequently exhumed by law enforcement officers or cemetery
workers unskilled in the techniques of forensic anthropology. Valuable
information may be lost in this manner and false information is sometimes
- 35 -
generated. Disinterment by untrained persons should be prohibited. The consulting anthropologist should be present to conduct or supervise the disinterment. Specific problems and procedures accompany the excavation of each
type of burial. The amount of information obtained from the excavation depends
on knowledge of the burial situation and judgement based on experience. The
final report should include a rationale for the excavation procedure.
The following procedure should be followed during disinterment:
(a) Record the date, location, starting and finishing times of the
disinterment, and the names of all workers;
(b) Record the information in narrative form, supplemented by sketches
and photographs;
(c) Photograph the work area from the same perspective before work begins
and after it ends every day to document any disturbance not related to the
official procedure;
(d) In some cases, it is necessary to first locate the grave within a
given area. There are numerous methods of locating graves, depending on the
age of the grave:
(i)
An experienced archaeologist may recognize clues such as
changes in surface contour and variation in local vegetation;
(ii) 'A metal probe can be used to locate the less compact soil
characteristics of grave fill;
(iii)
(e)
The area to
away with a
surrounding
the lighter
spraying of
outline;
be explored can be cleared and the top soil scraped
flat shovel. Graves appear darker than the
ground because the darker topsoil has mixed with
subsoil in the grave fill. Sometimes a light
the surface with water may enhance a grave's
Classify the burial as follows:
(i)
Individual or commingled. A grave may contain the remains of
one person buried alone, or it may contain the commingled
.remains of two or more persons buried either at the same time
or over a period of time;
(ii)
Isolated or adjacent. An isolated grave is separate from other
graves and can be excavated without concern'about encroaching
upon another grave. Adjacent graves, such as in a crowded
cemetery, require a different excavation technique because the
wall of one grave is also the wall'of another grave;
(iii)
Primary or secondary. A primary grave is the grave in ,~hich
the deceased is first placed. If the remains are then removed
and reburied, the grave is considered to be secondary;
(iv)
Undisturbed or disturbed. An undisturbed burial is unchanged
(except by natural processes) since the time of primary burial.
A disturbed burial is one that has been altered by human intervention after the time of primary burial. A1l secondary burials
are considered to be disturbed; archaeological methods can be
used to detect a disturbance in a primary burial;
- 36 -
(f) Assign an unambiguous number to the burial. If an adequate numbering
system is not already in effect, the anthropologist should devise a system;
(g) Establish a datum point, then block and map the burial site using an
appropriate-sized grid and standard archaeological techniques. In some cases,
it may be adequate simply to measure the depth of the grave from the surface
to the skull and from the surface to the feet. Associated material can then
be recorded in terms of their position relative to the skeleton;
(h) Remove the overburden of earth, screening the dirt for associated
materials. Record the level (depth) and relative co-ordinates of any such
findings. The type of burial, especially whether primary Qr secondary,
influences the care and attention that needs to be given to this step.
Associated materials located at a secondary burial site are unlikely to ,reveal
the circumstances of the primary burial but may provide information on events
that have occurred after that burial;
(i) Search for items such as bullets or jewellery, for which a metal,
detector can be useful, particularly in the levels immediately above and below
the level of the remains;
(j) Circumscribe the body, when the level of the burial is located, and,
when possible, open the burial pit to a minimum of 30 cm on all sides of the
body;
(k) Pedestal the burial by digging on all sides to the lowest level of
the body (approximately 30 cm). Also pedestal any associated artifacts;
(1) Expose the remains with the use of a soft brush or whisk broom. Do
not use a brush on fabric, as it may destroy fibre evidence. Examine the soil
found around the skull .for hair. Place this soil in a bag for laboratory
study. Patience is invaluable at this time. The remains may be fragile, and
interrelationships of elements are important ,and may be easily diarupted.
Damage can seriously reduce the amount of information available for analysis;
(m) Photograph and map the remains in sity. All photographs should
include an identification number, the date, a scale and an indiGation of magnetic north;
(i)
(ii)
(iii)
(n)
First photograph the entire burial, then focus on significant
details so that their relation to the whole can be easily
visualized;
Anything that seems unusual or remarkable should be photographed
at close range. Careful attention should be given to evidence
of trauma or pathological change, either recent or healed;
Photograph and map all associated meterials (clothes, hair,
coffin, artifacts, bullets, casings etc.). The map should
include a rough sketch of the skeleton as well as any
associated materials;
Before displacing anything, measure the individual:
(i)
Measure the total length of the remains and record the terminal
points of the measurement, e.g. apex to plantar surface of
calcaneus (~: This is not a stature measurement);
- 37 (ii)
If the skeleten. is so. fragile that it may break when lifted,
measure as much as pessible befere remeving it frem the greund;
(e) Remeve all elements and place them in bags er bexes, taking care to.
aveid damage. Number, date and initial every centainer;
(p) Excavate and screen the level ef seil immediately under the burial.
A level ef "sterile" (artifact-free) seil sheuld be lecated befere ceasing
excavatien and beginning to. backfill.
2.
Laberatery analysis ef skeletal remains
The fe11ewing protecel sheuld be fe1lewed during the 1aberatery analysis
ef the skeletal remains:
(a) Recerd the date, lecatien, starting and finishing times ef the
skeletal analysis, and the names ef all werkers;
(b)
Radiegraph all skeletal elements befere any further cleaning:
(i)
(ii)
Obtain bite-wing, apical and paneramic dental X-rays, if
pessible;
The entire skeleten sheuld be X-rayed. Special attentien
sheuld be directed to. fractures, deve1epmenta1 anemalies and
the effects ef surgical precedures. Frenta1sinus films sheuld
be included fer identificatien purpeses;
(c) Retain seme benes in their eriginal s.tate; two. lumbar vertebrae
sheuld be adequate. Rinse the rest ef the benes clean but de no.t seak er scrub
them. Allew the benes to. dry;
(d)
Lay o.ut the entire ske1eto.n in a systematic way:
(i)
(ii)
(iii)
(iv)
Distinguish left fro.m right;
Invento.ry every bene and recerd o.n a skeletal chart;
Invento.ry the teeth and reco.rd o.n a dental chart.
carieus, resto.red and missing teeth;
No.te broken,
Pho.to.graph the entire skeleto.n in o.ne frame. All pho.to.graphs
sho.u1d centain an identificatien number and scale;
(e) If mere than o.ne individual is to. be .analysed, and especially if
there is any chance that cempariso.ns will be made between individuals, number
every element with indelible ink befo.re any ether work is begun;
(f) Reco.rd the co.nditio.n ef'the remains, e.g. fully intact and selid,
ereding and friable, charred o.r cremated;
(g)
Preliminary identificatio.n:
(i)
(ii)
Determine age, sex, race and stature;
Reco.rd the reaso.ns fer each co.nc1usio.n (e.g. sex identity based
o.n skull and femera1 head);
- 38 -
(iii)
(h)
Photograph all evidence supporting these conclusions;
Individual identification:
(i)
(ii)
(iii)
Search for evidence of handedness, pathological change, trauma
and developmental anomalies;
Record the reasons for each conclusion;
Photograph all evidence supporting these conclusions;
(i) Attempt to distinguish injuries resulting from therapeutic measures
from those unrelated to medical treatment. Photograph all injuries:
(i)
(ii)
(iii)
Examine the hyoid bone for cracks or breaks;
Examine the thyroid cartilage for damage;
Each bone should be examined for evidence of contact with
metal. The superior or inferior edges of the ribs require
particular scrutiny. A dissecting microscope is useful;
(j) If the remains are to be reburied before obtaining an
identification,. retain the'fo1lowing samples for further analysis:
(i)
A mid-shaft cross-section from either femur, 2 cm or more in
height;
(ii)
A mid-shaft cross-section from either fibula, 2 cm or more in
height;
(iii)
(iv)
(v)
(vi)
(vii)
A 4-cm section from the sternal end of a rib (sixth, if
possible) ;
A tooth (preferably a mandibular incisor) that was vital at the
time of death;
Sever molar teeth for possible later deoxyribonucleic acid
fingerprinting. for identification;
A cast of the skull for possible facial reconstruction;
Record what samples have been saved, and label all samples with
the identification number, date and name of the person who
removed the sample.
3.
Final report
The following steps .shou1d be taken in the preparation of a final report:
(a)
Prepare a full report of all procedures and results;
(b)
Include a short summary of the conclusions;
(c)
Sign and date the report.
- 39 4.
Repository for evidence
In cases where the body cannot be identified, the exhumed remains or other
evidence should be preserved for a reasonable time. A repository should be
established to hold the bodies for 5-10 years in case they can be identified
at a later time.
1/ Advisory Services and Technical Assistance in the Field of Human Rights,
Human Rights Fact Sheet No.3 (Geneva, United Nations Centre for Human Rights,
1988); Summary or Arbitrary Executions, Human Rights Fact Sheet No.ll (Geneva,
United Nations Centre for Human Rights, 1990); see, also, The Teaching of Human
Rights: Proceedings of the International Congress on the Teaching of Human
Rights. Vienna. 12-16 September 1978 (Paris, United Nations Organization for
Education, Science and Culture, 1980).
1/ Methods of Combating Torture, Human Rights Fact Sheet No. 4 (Geneva,
United Nations Centre for Human Rights, 1987), pp. 7-9 and 10-12. See also
Laurence Boisson de Chazoumes and others, Practical Guide to the International
Procedures Relative to Complaint and Appeals Against Acts of Torture. Disappearances and Other Inhuman or Degrading Treatnlent (Geneva, World Organization
Against Torture, 1988).
J/ See D. O'Donnell, Proteccion internacional de los derechos humanos,
2. ed. (Lima, Comision Andina de Juristas, 1989); and N. S. Rodley, The
Treatment of Prisoners under International Law (Oxford, Clarendon Press,
1987), pp. 144-164 and B. G. Ramcharan, "The Concept and Dimensions of the
Right to Life", The Right to Life in International Law (Dordrecht, Martinus
Nijhoff Publishers, 1985), pp. 1-32.
~/
Report of the Human Rights Cowmittee (Official Records of the General
Assembly. Thirty-seventh session. Supplement No. 40) (A/37/40), annex X. See
also M. Novak, UNO-Pakt liber blirgerliche und politische Rechte und Fakultativprotokoll; CCPR-Kommentar (Kehl am Rhein, N.P. Engel Verlag, 1989), pp. 111-132;
and F. Newman and D. Weissbrodt, International Human Rights: Law. Policy. and
~r~ (Cincinnati, Ohio, Anderson, 1990).
2/ Report of the Human Rights Committee (Official Records of the General
Assembly. Fortieth session. Supplement No. 40) (A/40/40), annex X. See, also,
Enforced or Voluntary Disappearances, Human Rights Fact Sheet No. 6 (Geneva,
United Nations Centre for Human Rights, 1988).
~/
Statement submitted by the International Commission of Jurists, a
non-governmental organization in consultative status with the Economic and
Social Council, category II, and the International Human Rights Internship
Program, a non-governmental organization in consultative status with the
Economic and Social Council, roster (E/AC.57/l988/NGO.4).
1/ Sixth United Nations Congress on the Prevention of Crime and the
Treatment of Offenders. Caracas. Venezuela, 25 August-5 September 1980: Report
prepared by the Secretariat (United Nations publication, Sales No. E.8l.IV.4),
chap. I, sect. A.
- 40 -
Ji/ Seventh United Nations Congress on the Prevention of Crime and the
Treatment of Offenders. Milan. 26 August-6 September 1985: Report prepared~
the Secretariat (United Nations publication, Sales No. E.86.IV.1), chap. I,
sect. E.
2/ International Labour Office, Governing Body, Two Hundred and
Eighteenth Report of the Committee on Freedom of Association (GB.221/6/16),
para. 390(c).
10/ Annual report of the Inter-American Commission on Human Rights
1981-1982, OAS doc. OEA/Ser.L/V/II.57, doc. 6, rev.1 (Washington, D.C., 1982),
p. 36.
11/ For a general overview of the question see E. R. Zafaroni, "The
right to life and Latin American penal systems", The Annals of the American
Academy of Political and Social Science, Marvin E. Wolfgang, ed., vol. 506,
November 1989, pp. 57-67.
12/ See, Inter-American Court H.R .• Velasquez Rodriguez Case. Judgment of
July 29. 1988. series C. No.4; Inter-American Court H.R •• Godinez Cruz Case.
Judgment of January 20. 1989. series C. No.5.
13/ Cyprus v. Turkey, Apps. No. 6780/74 and 6950/75, Decision of
17 July 1976, European Human Rights Reports, 482 (1982).
14/ J. L. Thomsen and others, "Amnesty International and the forensic
sciences", American Journal for Medical Pathology, vol. 5, No.4
(December 1984), pp. 305-311.
- 41 Annex I
PRINCIPLES ON THE EFFECTIVE PREVENTION AND INVESTIGATION
OF EXTRA-LEGAL, ARBITRARY AND SUMMARY EXECUTIONS
Effective prevention and investigation of extra-legal.
arbitrary and summary executions
The Economic and Social Council,*
Recalling that article 3 of the Universal Declaration of Human
Rights g/ [108] proclaims that everyone has the right to life, liberty and
security of person,
Bearing in mind that paragraph 1 of article 6 of the International
Covenant on Civil and Political Rights h/ [114] states that every human being
has an inherent right to life, that that right shall be protected by law and
that no one shall be arbitrarily deprived of his or her life,
Also bearing in mind the general comments of the Human Rights Committee
on the right to life as enunciated in article 6 of the International Covenant
on Civil and Political Rights,
Stressing that extra-legal, arbitrary and summary executions contravene
the human rights and fundamental freedoms proclaimed in the Universal
Declaration of Human Rights,
Mindful that the Seventh United Nations Congress on the Prevention of.
Crime and the Treatment of Offenders, in resolution 11 on extra-legal,
arbitrary and summary executions, ~/ [93] called upon all Governments to take
urgent and incisive action to investigate such acts, wherever they may occur,
to punish those found guilty and to take all other measures necessary to
prevent those practices,
Mindful also that the Economic and Social Council, in section VI of its
resolution 1986/10 of 21 May 1986, requested the Committee on Crime Prevention
and Control to consider at its tenth session the question of extra-legal,
arbitrary and summary executions with a view to elaborating principles on the
effective prevention and investigation of such practices,
Recalling that the General Assembly in its resolution 33/173 of
20 December 1978 expressed its deep concern at reports from various parts of
the world relating to enforced or involuntary disappearances and called upon
Governments, in the event of such reports, to take appropriate measures to
searching for such persons and to undertake speedy and impartial investigations,
Noting with apprecia~J1 the efforts of non-governmental organizations to
develop standards for investigations, g/ [115]
Note: References are numbered g/, h/ etc., with the original numbering
from the resolution given in square brackets immediately following the
footnote indicators.
*Resolution 1989/65 of 24 May 1989.
- 42 Emphasizing that the General Assembly in its resolution 42/141 of
7 December 1987 strongly condemned once again the large number of summary or
arbitrary executions, including extra-legal executions, that continued to take
place in various parts of the world,
Noting that in the same resolution the General Assembly recognized the
need for closer co-operation between the Centre for Human Rights, the Crime
Prevention and Criminal Justice Branch of the Centre for Social Development
and Humanitarian Affairs and the Committee on Crime Prevention and Control in
an effort to bring to an end summary or arbitrary executions,
Aware that effective prevention and investigation of extra-legal,
arbitrary and summary executions requires the provision of adequate financial
and technical resources,
1. Recommends that the Principles on the Effective Prevention and
Investigation of Extra-legal, Arbitrary and Summary Executions annexed to the
present resolution shall be taken into account and respected by Governments
within the framework of their national legislation and practices, and shall be
brought to the attention of law enforcement and criminal justice officials,
military personnel, lawyers, members of the executive and legislative bodies
of the Government and the public in general;
2. Requests the Committee on Crime Prevention and Control to keep the
above recommendations under constant review,"including "implementation of the
Principles, taking into account the various socio-economic, political and
cultural circumstances in which extra-legal, arbitrary and summary executions
occur;
3. Invites Member States that have not yet ratified or acceded to international instruments that prohibit extra-legal, arbitrary and summary executions, including the International Covenant on Civil and Political Rights, h/
[114] the Optional Protocol to the International Covenant on Civil and
Political Rights and the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, g/ [116] to become parties to these
instruments;
4. Requests the Secretary-General to include the Principles in the
United Nations publication entitled Human Rights: A Compilation of International Instruments;
5. Requests the United Nations regional and interregional institutes for
the prevention of crime and the treatment of offenders to give Special attention in their research and training progrrurunes to the Principles, and to the
International Covenant on Civil and Political Rights, h/ [114] the provisions
of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, g/ [116] the Code of Conduct for Law Enforcement
Officials, f/ [104] the Declaration of Basic Principles of Justice for Victims
of Crime and Abuse of Power g/ [102] and other international instruments
relevant to the question of extra-legal, arbitrary and summary executions.
- 43 -
Annex to the Economic and Social Council resolution lQ89/65
PRINCIPLES ON THE EFFECTIVE PREVENTION AND INVESTIGATION
OF EXTRA-LEGAL, ARBITRARY AND SUMMARY EXECUTIONS
Prevention
Goverrunents shall prohibit by law all extra-legal, arbitrary and summary
executions and shall ensure that any such executions are recognized as offences
under their criminal laws, and are punishable by appropriate penalties which
take. into account the seriousness of .such offences. Exceptional circumstances
including a state of war or threat of war, internal political instability or
any other public emergency may not be invoked as a justification of such
executions. Such executions shall not be carried out under any circumstances
including, but not limited to, situations of internal armed conflict, excessive
or illegal use of force by a public official or other person acting in an
official capacity or a person acting at the instigation, or with the consent
or acquiescence of such person, and situa'tions in which deaths occur in
custody. This prohibition shall prevail over decrees issued by goverrunental
authority.
1.
2. In order to prevent extra~legal, arbitrary and summary executions,
Goverrunents shall ensure strict control, including a clear chain of command
over all officials responsible for the apprehension, arrest, detention,
custody and imprisonment as well as those officials authorized by law to use
force and firearms.
3. Goverrunents shall prohibit orders from superior officers or public authorities authorizing or inciting other persons to carry out any such extra'-legal,
arbitrary or summary executions. All persons shall have the right and the
duty to defy such orders. Training of'law enforcement officials shall
emphasize the above provisions.
4. Effective protection through judicial or other means shall beguarantced
to i.ndividuals and groups who are in danger of extra-legal, arbitrary ,or
summary executions, including those who receive death threats.
5. No one shall be involuntarily returned orextrad,ited to a country where
there are substantial grounds for believing that he or she may become Ii victim
of extra-legal, arbitrary or summary execution in that country.
6. Governments shall 'ensure that persons deprived of their liberty are held
in officially recognized places of custody, and that accurate information on
their custody and whereabouts, including transfers, is made promptly available
to their relatives and lawyer or other persons of confidence.
7. Qualified inspectors, including medical personnel, or an equivalent
independent authority, shall conduct inspections in places of custody on a
regular basis, and be empowered to undertake unannounced inspections on their
own initiative, with full guarantees of independence in the exercise of this
function. The inspectors shall have unrestricted aC,cess to all persons in
'such places of cus tody, as well as to' all their records.
8. Goverrunents shall make every effort to prevent extra-legalj arbitrary and,
summary executions through measu'res such 'as diplomatic inter.cession, improved
access of complainants to intergovernmental and judicial bodies, and public
denunciation. Intergovernmental mechanisms shall be used to investigate
reports of any such executions and to take effective action against such
- 44 practices. Governments, including those of countries where extra-legal,
arbitrary and summary executions are reasonably suspected to occur, shall
co-operate fully in international investigations on the subject.
Investigation
9. There shall be a thorough, prompt and impartial investigation of all suspected cases of extra-legal, arbitrary and summary executions, including cases
where complaints by relatives or other reliable reports suggest unnatural death
in the above circumstances. Governments shall maintain investigative offices
and procedures to undertake such inqu1r1es. The purpose of the investigation
shall be to determine the cause, manner and time of death, the person responsible, and any adequate autopsy, collection and analysis of all physical and
documentary evidence, and statements from witnesses. The investigation shall
distinguish between natural death, accidental death, suicide and hoinicide.
10. The investigative authority shall have the power to obtain all the information necessary to 'the inquiry. Those persons conducting the investigation
shall have at their disposal all the necessary budgetary and technical
resources for effective investigation. They shall also have the authority ,to
oblige officials allegedly involved in any such executions to appear and
tes tHy. The same' shall apply to any witness. To this end , they shall be
entitled to'issue SummonS to witnesses, including the officials allegedly,
involved, and to demand the production of evidence.
11. In cases in which the established investigative procedures are inadequate
because of lack of expertise or impartiality, because of the importance of the
matter 'or because of the apparent existence of. a 'pattern of abuse, and in cases
where there are complaints from the family of the victim about these inadequacies or other substantial reasons, Governments shall pursue investigations
through an independent commission of inquiry ,or similar procedure. Members of
such a commission shall be chosen for their recognized impartiality, competence
and independence as individuals. In particular, they shall be independent of
any institution, agency or person that may be the subject of the inquiry. The
commission shall have the authority to obtain all information necessary to the
inquiry and shall conduct the inquiry as provided for under these Principles.
12. The body of the deceased person shall not be disposed of until an
adequate autopsy is conducted by a physician', who shall, if possible, be an
expert in forensic pathology. Those conducting the autopsy shall have the
right of access to all investigative data, to the place where the body was
discovered, and to the place where the death is thought to have occurred. If
the body has been buried and it 'later appears that an investigation is
required, the body shall be promptly and competently exhumed for an autopsy.
If skeletal remains are discovered, they should be carefully exhumed and
studied according to systematic anthropological techniques.
13. The body of the deceased shall be available to those conducting the
autopsy for a sufficient amount of time to enable a thorough investigation to
be carried out. The autopsy shall, at a minimum, attempt to establish the
identity of the deceased and the cause and manner of death. The time and
place of death shall also be determined to the extent possible. Detailed
colour photographs of the deceased shall be included in the autopsy report in
order to document and support the findings of the investigation. The autopsy
report must describe any and all injuries to the deceased including any
evidence of torture.
- 45 -
14. In order to ensure objective results, those conducting the autopsy must
be able to function impartially and independently of any potentially implicated
persons or organizations or entities.
15. Complainants, witnesses, those conducting the investigation and their
families shall be protected from violence, threats of violence or any other
form of intimidation. , 'Those potentially implicated in extra-legal, arbitrary
or summary executions shall be removed from any position of control or power,
whether direct or indirect, over complainants, witnesses and their families,
as well as over those conducting investigations.
16. Families of the deceased and their legal representatives shall be informed
of, and have access to, any hearing as well as to all information relevant to
the investigation, and shall be entitled to present other evidence. The family
of the deceased shall have the right to insist that a medical or other qualified representative be present at the autopsy. When the identity of a
deceased person has been determined, a notification of death shall be posted,
and the family or relatives of the deceased immediately informed. The body of
the deceased shall be returned to them upon completion of the investigation.
17. A written report shall be made within a reasonable period of time on the
methods and findings of such investigations. The report shall be made public
immediately and shall include the scope of the inquiry, procedures and methods
used to evaluate evidence as well as conclusions and recommendations based on
findings of fact and on applicable law. The report shall also describe in
detail specific events that were found to have occurred, and the evidence upon
which such findings were based, and list the names of witnesses who testified,
with the exception of those whose identities have been withheld for their own
protection. The Government shall, within a reasonable period of time, either
reply to the report of the investigation, or indicate the steps to be taken in
response to it.
Legal proceedings
18. Governments shall ensure that persons identified by the investigation as
having participated in extra-legal, arbitrary and summary executions in any
territory under their jurisdiction are brought to justice. Governments shall
either bring such persons to justice or co-operate to extradite any such
persons to other countries wishing to exercise jurisdiction. This principle
shall apply irrespective of who and where the perpetrators or the victims are,
their nationalities or where the offence was committed.
19. Without prejudice to Principle 3 above, an order from a superior officer
or a public authority may not be invoked as a justification for extra-legal,
arbitrary or summary executions. Superiors, officers or other public officials
may be held responsible for acts committed by officials under their hierarchical authority if they had a reasonable opportunity to prevent such acts.
In no circumstances, including a state of war, siege or other public emergency,
shall blanket immunity from prosecution be granted to any person allegedly
involved in extra-legal, arbitrary or summary executions.
20. The families and dependents of victims of extra-legal, arbitrary and
summary executions shall be entitled to fair and adequate compensation within
a reasonable period of time.
- 46 -
~/
h/
General Assembly resolution 217 A (III).
See General Assembly resolution 2200 A (XXI), annex.
~/
See Seventh United Nations Congress on the Prevention of Crime and
the Treatment of Offenders. Milan. 26 August-6 September 1985: report
prepared by the Secretariat (United Nations publication, Sales No. E.86.IV.l),
chap. I, sect. E.
g/
See E/AC.57/1988/NGO.4.
~/
General Assembly resolution 39/46, annex.
fI
General Assembly res'olution 34/169, annex.
g/
General Assembly resolution 40/34, annex.
- 47 -
Annex II
POSTMORTEM DETECTION OF TORTURE
Torture technique
Physical findings
Beating
1.
General
Scars. Bruises. Lacerations.
Multiple fractures at different
stages of healing, especially
in unusual locations, which have
not been medically treated.
2.
To the soles of the feet
(lfa1anga", "fa1aka",
"bastinado") ," or fractures
of the bones of the feet.
Haemorrhage in the soft tissues
of the soles of the feet and
ankles. Aseptic necrosis.
3.
With the palms on both ears
simultaneously (lI e1 te1efone").
Ruptured or scarred tympanic
membranes. Injuries to external
ear.
4.
On the abdomen, while lying on a
table with the upper half of the
body unsupported (lloperating
table", "e1 quirofano").
Bruises on the abdomen.
Back injuries. Ruptured
abdominal viscera.
5.
To the head.
Cerebral cortical atrophy.
Scars. Skull fractures.
Bruises. Haematomas.
Suspension
6.
By the wrists (lila bandera").
Bruises or scars about the
wrists. Joint injuries.
By the arms or neck.
Bruises or scars at the site of
binding. Prominent lividity in
the lower extremities.
8.
By the ankles ("murcielago").
Bruises or scars about the
ankles. Joint injuries.
9.
Bead down, from a horizontal
pole placed under the knees
with the wrists boUnd to the
ankles ("parrot's perch",
"Jack", "pau de arara").
Bruises or scars on the anterior
forearms and backs of the knees.
Marks on the wrists and ankles.
7.
- 48 -
Near suffocation
10.
Forced immersion of head in water,
often contaminated "wet submarine",
"pileta", "Latina").
Faecal material or other debris
in the mouth, pharynx, trachea,
esophagus or lungs.
Intrathoracic petechiae.
Intra-thoracic petechiae.
11.
Tying of a plastic bag over the
head ("dry submarine").
Intra-thoracic petechiae.
Sexual abuse
12,
Sexual abuse
Sexually transmitted diseases.
Pregnancy. Injuries to breasts,
external genitalia, vagina, anus
or rectum.
Forced posture
13.
Prolonged standing ("el planton").
Dependent edema. Petechiae in
lower extremities.
14.
Forced straddling of a bar
("saw horse", "el cabellete").
Perineal or scrotal haematomas.
Electric shock
15.
Cattle prod (lila picana").
16.
Wires connected to a source
of electricity.
17.
Heated metal skewer inserted
into the anus (llblack slave").
Burns: appearance depends on the
age of the injury. Immediately:
red spots, vesicles, and/or black
exudate. Within a few weeks:
circular, reddish, macular scars.
At several months: small, white,
reddish or brown spots resembling
telangiectasias.
Peri-anal or rectal burns.
Miscellaneous
18.
Dehydration
Vitreous humor electrolyte
abnormalities.
Animal bites
(spiders, insects, rats,
mice, dogs)
Bite marks.
- 49 Annex III
DRAWINGS OF PARTS OF HUMAN BODY FOR IDENTIFICATION OF TORTURE
MARK ALL EXISTING RE,!jTORATIONS AND MISSING TEETH ON THIS CHART
Estimated
Age _______
Sex _______
Race_
CirCle deSCric five rer",
PrOSthetic Appliances Present.
Maxilla
Full Oenture
Partial Denture
~ 1
2
3
4
5
6
8
9.
10
11
12 13
15
16 r
. Fixed Bridge
iO----------------------------------------------------------~
32
31
30
29 28 27 26 25 ~4 23 22
21 20
19
18
17 ...
Mandible
Full Denture
Partial Dent\Jre
Fixed Bridge
Oescribe complftely all Prosthetic Appliances or FixfC Bridges ____________________________
Stains on tHth
Slight
MOderate
Stovere
MARK ALL CARIES ON THIS CHART
Circl. descriptive term
RelationShip
Outli". .11 cori" and 'X' out .11 miS1ing tlfth
Normll
Undershot
Overbite
Periodontal Condition
Excellent
Average
16~
Poor
'Tl
17 -<
Calculus
Slight
Moaerate
Severe
- 50 V. COMPARISON OF BODY WITH POSSIBLE DECEDENTS
NAMES OF DECEDENTS
TRAITS
BODY
SEX
AGE
RACE
STATURE
WEIGHT
CLOTHING
JEWELLERY
DOCUMENTS
SCARS, TATTOOS
OLD SURGERY
ANOMALIES/DEFORM
DENTITION
FINGERPRI~~S_ _
OTHER
I
I
I
[
I
J
I
RULE OUT
POSSIBLE BY EXCLUSION
PROBABLE
POSITIVE
VI. NOTES ________________________________________________________ - - -___
- 51 FULL BODY, FEMALE - LATERAL VIEW
L.ARM
R.ARM
j
Name
Case No. _ _ _ _ _,_ _ _ _ _ __
Date _ _ ._ _ _ _ _ _ _ _ _ __
- 52 FULL BODY, FEMALE - ANTERIOR AND POSTERIOR VIEWS
Name
Case No.
Date _ _ ._ _ _ _._ _ _ _ _ _ __
---
------------------
--------------------------------------------~
- 53 THORACIC ABDOMINAL, FEMALE - ANTERIOR AND POSTERIOR VIEWS
)
Name
Case No. _ _ _ _ _ _ _ _ _ _ _ __
Date _ _ _ _ _ _ _ _ _ _ _ _ __
- 54 -
PERINEUM - FEMALE
Name
Case No. _ _ _ _ _ _ _ _ _ __
Date _ _ . _ _ _ _ _ _ _ _ _ _ __
- 55 FULL BODY, MALE - LATERAL VIEW
L. ARM
R. ARM
)
Name
Case No. _ _ _ _ _ _ _ _ _ _ __
Date _ _ ._ _ _ _ _ _ _ _ _ _ __
- S6 FULL BODY, MALE - ANTERIOR AND POSTERIOR VIEWS (VENTRAL AND DORSAL)
/\
\... I
Name ________________________________________ Case No. ________________
Date ________________________
- 57 THORACIC ABDOMINAL, MALE - ANTERIOR AND POSTERIOR VIEWS
)
-
- -<==: ==--=-
....
~
~---===Name
Case No. _ _ _ _ _ _ _ _ __
Date _ _ _ _ _ _ _ _ _ __
- 58 RIGHT HAND - PALMAR AND DORSAL
Name _ _ _ _ _ _ _ _ _ _ _ _ Case No. _ _ _ _ _ _ _ __
Date_. _ _ _ _ _ _ _ __
- 59 LEFT HAND - PAL.MAR AND DORSAL
Name _ _ _ _ _ _ _ _ _ _ _ _ Case No. _ _ _ _ __
Date _ _ _ _ _ _ _ _ _ _ _ _ _
- 60 FEET - LEFT AND RIGHT PLANTAR SURFACES
Name
Case No. _ _ _ _ _ _ _ _ _ _ __
Date _ _ ._ _ _ _ _ _ _ _ _ _ __
- 61 INFANT - VENTRAL, DORSAL, AND LEFT AND RIGHT LATERAL VIEWS
,!
Name - - - - - - - - - - - - - - - - - - - - - - - - - - -
Case No. _ _ _ _ _ _ _ _ _ _ _ _
Date _ _ _ _ _ _ _ _ __
~
I.
- 62 HEAD -SURFACE AND SKELETAL ANATOMY, LATERAL VIEW
Name _______________________________ Case No. _______________
Date _ _ _ _ _ _ _ _ _ _ __
- 63 SKELETON - ANTERIOR AND POSTERIOR VIEWS
Name ________________________________________ Case No. _______________
Date ______________
- 64 VERTEBRAL COLUMN AND RIB CAGE - LEFT AND RIGHT LATERAL VIEWS
5
6
7
8
9
Name __________________________ Case No. _ _ _ _ _ _ _ _ _ _ __
Date ________________
- 65 -
HEAD - SURFACE AND SKELETAL ANATOMY, ANTERIOR AND POSTERIOR VIEWS
Name _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Case No.
Date _ _ _ _ _ _ _ _ _ __
- 66 HEAD - SURFACE AND SKELETAL ANATOMY, LATERAL VIEW
Name _________________________________ Case No _ _ _ _ _ _ _ _ _ __
Date _ _ _ _ _ _ _ _ _ __
------------------------
-~----------
- 67 HEAD - SURFACE AND SKELETAL ANATOMY, SUPERIOR VIEW -INFERIOR VIEW OF NECK
-~
Name ___________________________________ Case No. __________________
Date _____________________
- 68 SKULL - BASE,INFERIOR AND SUPERIOR VIEWS (PLUS CALVARIUM)
A
L
INNER VIEW OF SKULL
Name _ _ _ _ _ _ _ _ _ _ _ _ _ __
Case No. _ _ _ _ _ _ __
Date _ _ _ _ _ _ _ __
BRAIN
-
~/_ _
Name ,~ - -
S
- 69 -
UPERIOR . IN FERIOR AND
•
LATERAL VIEWS
Case No.
Date
- 70 -
STAB WOUND CHART
NAME _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ City or County _ _ _ _ _ _ _ __
WOUND NO.
1
2
3
5
4
6
7
8
9
10
Head
Neck
1.
Chest
Location
.1
-/;.~,
Abdomen
of
wound:
\
,--
Back
Arm
Leg
<
<
Right
Left
Right
Left
Horiz.
2.
The skin
Vert.
wound is:
Oblique
Top of head
3.
Centimetres
from wound to:
4.
Wound size
in millimetres
Right of
midline
Left of
midline
Width
Length
Diam.
Backward
Forward
5.
Direction
Upward
of wound:
Downward
Medially
Laterallv
Photographs made: Y e s _ No _ __
REMARKS:
Examined by: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Date: _'_ _ _ _ _ _ _ _ __
- 71 FIREARM WOUND CHART
NAME
_____________________________________ CASENO. __________________
WOUND NO.
2
1
Ent.
Ex.
Ent.
3
Ex.
Ent.
4
Ex.
Ent.
5
Ex.
Ent.
6
Ex.
Ent.
Ex.
Head
Neck
Chest
1.
Location
Abdomen
of
Back
wound:
Right
Arm<
I
I
Left
Right
Leg<
Left
2. Size of
wound:
I
I
I
Diam.
I
Width
(Centimetres) Length
3. Centimetres Top of head
from
wound to:
Right of
midline
Left of
midline
On skin
4. Firearm
Clothing
Residue:
I
I
1
;
Absent
Backward
!
I
5.
Direction
of missile
through
body:
Forward
I
Downward
Upward
To right
To left
6. Missile
Recovered:
Probable
Calibre
Shotgun
Photographs: _ _ _ _ _ _ _ _ _ __
X·rays: _ _ _ _ _ _ _ _ _ _ __
REMARKS:
Examiner: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Date: ___________
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