D. Elements and Principles of Investigations 1. (b) Recover and preserve all material probative of the cause of death, the identity of the perpetrator(s) and the circumstances surrounding the death59 Elements of the duty to investigate 22. International law requires that investigations be: (i) prompt; (ii) effective and thorough; (iii) independent and impartial; and (iv) transparent.53 (c) Identify possible witnesses and obtain their evidence in relation to the death and the circumstances surrounding the death i. Prompt 23. The rights to life and to an effective remedy are violated when investigations into potentially unlawful death are not conducted promptly.54 Authorities must conduct an investigation as soon as possible and proceed without unreasonable delays.55 Officials with knowledge of a potentially unlawful death must report it to their superiors or proper authorities without delay.56 The duty of promptness does not justify a rushed or unduly hurried investigation.57 The failure of the State promptly to investigate does not relieve it of its duty to investigate at a later time: the duty does not cease even with the passing of significant time. (d) Determine the cause, manner, place and time of death, and all of the surrounding circumstances. In determining the manner of death, the investigation should distinguish between natural death, accidental death, suicide and homicide;60 and (e) Determine who was involved in the death and their individual responsibility for the death. It will almost always be the case that these aims will be materially assisted in some way by the performance of an autopsy. A decision not to undertake an autopsy should be justified in writing and should be subject to judicial review. In the case of an enforced disappearance, an investigation must seek to determine the fate of the disappeared and, if applicable, the location of their remains.61 ii. Effective and thorough 24. Investigations of any potentially unlawful death or enforced disappearance must be effective and thorough. Investigators should, to the extent possible, collect and confirm (for example by triangulation) all testimonial, documentary and physical evidence. Investigations must be capable of: ensuring accountability for unlawful death; leading to the identification and, if justified by the evidence and seriousness of the case, the prosecution and punishment of all those responsible;58 and preventing future unlawful death. 25. Investigations must, at a minimum, take all reasonable steps to: (a) Identify the victim(s) 26. The investigation must determine whether or not there was a breach of the right to life. Investigations must seek to identify not only direct perpetrators but also all others who were responsible for the death, including, for example, officials in the chain of command who were complicit in the death. The investigation should seek to identify any failure to take reasonable measures which could have had a real prospect of preventing the death. It should also seek to identify policies and systemic failures that may have contributed to a death, and identify patterns where they exist.62 53 See Human Rights Committee, General Comment No. 31, op. cit., para. 15; UN Fact-Finding Mission on the Gaza Conflict, para. 1814; see also UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Principles 22 and 23; IACtHR, Gómez Palomino v. Peru, Judgment, 22 November 2005, para. 79 ff; and Landaeta Mejías Brothers and others v. Venezuela, Judgment, 27 August 2014, para. 254; ACHPR, Amnesty International and others v. Sudan, 15 November 1999, para. 51; ACHPR, General Comment No. 3 on the Right to Life, para. 7; ICPED, Art. 12(1). 54 IACtHR, Garibaldi v. Brazil, Judgment, 23 September 2009, para. 39. For the requirement during armed conflict, see, e.g., Report of the detailed findings of the independent commission of inquiry established pursuant to Human Rights Council resolution S-21/1, UN doc. A/HRC/29/CRP.4, 24 June 2015, para. 625; Turkel II, Recommendation 10, para. 66, p. 399. 55 Turkel II, paras. 37, 63–66; pp. 385, 397–99. 56 IACtHR, Anzualdo Castro v. Peru, Judgment, 22 September 2009, para. 134. 57 ECtHR, Pomilyayko v. Ukraine, Judgment, 11 February 2016, para. 53. 58 Human Rights Committee, José Antonio Coronel and others v. Colombia, Views (Comm. No. 778/1997), 24 October 2002; Sathasivam v. Sri Lanka, Views (Comm. No. 1436/2005), 8 July 2008; and Abubakar Amirov and others v. Russia, Views (Comm. No. 1447/2006), 2 April 2009. Working Group on Enforced or Involuntary Disappearances, General Comment on the Right to the Truth in Relation to Enforced Disappearances, para. 5. 59 This should include telephone logs or reports, as well as digital evidence contained on mobile telephones, computers, cameras and other electronic devices. 60 IACtHR, Véliz Franco and others v. Guatemala, 2011, para. 191. 61 See ICPED, Art. 24(2) and (3). 62 For example, in order to establish the element of “widespread or systematic”, evidence of the same chronology of events in different towns could be valuable (e.g. the arming of certain groups within the area, the arrival of paramilitaries into an area shortly before mass killings, communication and interaction between military and paramilitary groups, action by the military in support of paramilitary groups (e.g. shelling in advance of ground movement by paramilitaries), the establishment of detention facilities as part of a take-over plan, transfer of prisoners in an organized way between detention facilities in different towns, advanced preparation of mass graves, or templated paperwork used for the arrest, detention and transfer of prisoners). 7