Obligation to investigate deaths The obligation to investigate deaths arises irrespective of how the authorities found out about the death, whether state agents were involved, or the circumstances surrounding the death. This procedural obligation is not confined solely to circumstances where an individual has lost his or her life as a result of an act of violence. This obligation is not diminished in the counter-terrorism context. For example, in the McShane case the right to life was held to be engaged in relation to negligent driving of an armoured vehicle into a rioting crowd in Northern Ireland.256 It is not decisive that a formal complaint has been lodged. The mere knowledge of a killing on the part of the authorities gives rise to an obligation to carry out an effective investigation.257 Failure to investigate properly a death will be at odds with a state’s procedural obligations in relation to the right to life, and this will be in addition to any violation found in relation to the killing itself.258 There are therefore two aspects to the right to life. There is a procedural element as well as a substantive one. Merely paying compensation in the absence of an investigation is not sufficient to satisfy either.259 Disappearances “Enforced disappearances” are the practices of abduction and secret detention. Unacknowledged detention may lead to torture and eventual killing. As such a number of human rights are engaged including: • • • • • the right to life; the right to liberty; protection from torture; due process rights such as habeas corpus, and the requirement of legality; and the right to an effective remedy. 256 “The Court recalls that Article 2 covers not only intentional killing but also situations where death may result as an unintended outcome of the use of force […] Nor is the term ‘use of force’ applicable only to the use of weapons or physical violence. It extends, without distortion of the language of the provision, to the use of an army vehicle to break down and dismantle barricades. The facts of this case may be distinguished from a road traffic accident, where, for example, a soldier happens to injure a pedestrian as he is driving home from work, when it may be considered that the involvement of a member of the security forces is incidental. Where however a soldier is given orders to use a heavy armoured vehicle, during a riot, to clear away a barricade in the close vicinity of civilians who are using it either as cover or a shelter, this must be regarded as part of an operation by the security forces for which State responsibility under Article 2 of the Convention may potentially arise”, ECtHR, McShane v. UK, Application no. 43290/98, 28 May 2002, para. 101. 257 Op. cit., note 252, ECtHR, Ergi v. Turkey, paras. 82-83. 258 “[…] Having regard to the lack of effective procedural safeguards disclosed by the inadequate investigation carried out into the disappearance and the alleged finding of Ahmet Çakıcı’s body […] the Court finds that the respondent State has failed in its obligation to protect his right to life. Accordingly, there has been a violation of Article 2 of the Convention on this account also”, ECtHR, Çakici v. Turkey, Application no. 23657/94, 8 July 1999, para. 87. 259 This stems from the joint application of Art. 2 and Art. 13 ECHR: “In cases of the use of lethal force or suspicious deaths, the Court has also stated that, given the fundamental importance of the right to the protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life, including effective access for the complainant to the investigation procedure […] In a number of cases it has found that there has been a violation of Article 13 where no effective criminal investigation had been carried out, noting that the requirements of Article 13 were broader than the obligation to investigate imposed by Article 2 of the Convention”, op. cit., note 253, ECtHR, Hugh Jordan v. UK, para. 160. In the same vein, op. cit., note 252, ECtHR, Ergı v. Turkey, para. 98 and ECtHR, Salman v. Turkey, Application no. 21986/93, 27 June 2000, para. 123). Countering Terrorism, Protecting Human Rights 103