The Application of the Concept of Continuing Violation to the Duty to Investigate, Prosecute and Punish Under International Human Rights Law
51 Pages Posted: 24 Aug 2006 Last revised: 24 Nov 2010
Date Written: January 1, 2003
It is a well-established rule of international law that a State can be held responsible for its acts or omissions only if these acts and omissions are not in conformity with the obligations imposed on that State at the time that they were committed. However, in some cases an act or an omission committed before the ratification of a human rights treaty may keep affecting the right(s) of a person protected under the treaty. A similar situation may be observed when an application is lodged with an international organ whose competence was recognised by the relevant State after the complained act or omission had been committed. The effects of an event occurred before the recognition might be continuing.
Problems arising from these situations are generally resolved with reference to the doctrine of continuing violation under international law. This article, however, does not discuss the concept of continuing violation generally. It examines whether this concept can apply to the duty to investigate, prosecute and punish under international human rights law. Thus, the research questions of the article can be formulated as follows: Can the duty to investigate, prosecute and punish be divorced from the main duty, e.g. not to kill, not to torture etc.? If so, is this duty of continuing nature? How should human rights organs respond if the State fails to investigate or prosecute those who committed a human rights violation before the entry into force of the relevant human rights treaty, or before the State recognised the competence of the relevant international organ? To sum up, the core theme of the article will be the examination of whether the State's duty to investigate, prosecute and punish extend to human rights violations occurred before the critical date.
Keywords: human rights, continuing violation, international law, European Convention
JEL Classification: K1, K33, K39
Suggested Citation: Suggested Citation