Adriana García García*

In the mid-17th century, the English philosopher Thomas Hobbes used the image of a biblical monster, the Leviathan, to illustrate the power of the State and its function of maintaining social order. It has since remained a symbol of fear-invoking power and unmatched sovereign strength.

The foundation for the potentially monstrous power of the Leviathan is one of the main obligations of the State, perhaps the most primary one of them all:  to maintain security within its territory. If a State does not fulfill that function, all other possible aspirations, from the offer of high-quality public services, to economic development and the respect and promotion of fundamental rights, are deeply compromised and, in extreme circumstances, can become even impossible.

The problem is that, to fulfill the responsibility of providing security, the State needs to have a monopoly on the legitimate use of violence.

The key lies in the «legitimacy» of the violence that is exercised by the State, through professional and stable security forces. These forces which cannot be self-policing, but must be subject to scrupulous, objective and transparent surveillance, vis-à-vis society and the international community; otherwise, it is easy for them to cross the limits of legitimacy and end up perpetuating, precisely, the violence they are called upon to combat.

International norms and standards on this matter require certain practices carried out by States–such as torture, forced disappearances, extra-judicial executions or some forms of sexual abuse– to be investigated, and even directly prosecuted, through independent investigative agencies (IIA). These agencies retain the same authority and legitimacy as the security forces and maintain strict autonomy from the state bodies they monitor.

However, ensuring the independence of these agencies in charge of investigating police, security forces and, in some cases, the armed forces, is an easier said than done. While the need for independent investigative agencies is evident, the path to building and preserving such independence is not so clear.

The establishment of specific methods or the definition of the best practices to achieve the independence of the investigative agencies is a work in progress that is being built through the identification of relevant experiences in the field.

The most recent Open Society Justice Initiative report, “Who Polices the Police?”, is an especially relevant contribution to the clarification of how to ensure the independence of investigative agencies. It collects the experiences of 11 of these agencies, in countries as different as Ireland, Israel, Jamaica and Georgia, among others. It also examines four specialized departments that, without full independence, have carried out similar functions to investigative agencies, with interesting or encouraging results, in Argentina, Ukraine, Brazil and the United States.

One of the most interesting features of the research is, precisely, the diversity of the institutions analyzed. It reveals, on the one hand, the common inertias of the State agencies that exercise different forms of violence, which do not directly depend on factors such as the level of economic development, the cultural environment or the specific legal tradition to which they belong. On the other hand, it also shows that certain conditions such as an adequate budget, the duration of the agency’s director tenure, or the institutional location and the accountability of the agency, exert an important influence on its level of independence.

Based on this research, Open Society Justice Initiative proposes a series of recommendations, grouped into 10 categories, which cover legal, institutional, economic and social aspects of investigative agencies. These recommendations offer a broad overview of the conditions necessary for the investigation of crimes that are especially difficult to substantiate, given that State agencies have every incentive to hide them. The systematization and ordering of this wide range of considerations can be very useful for the discussion of the subject at international level.

Among the recommendations, it is worth highlighting the need for the creation and operation of IIAs to be prescribed in separate legislation from the regulatory framework of security agencies—including even making sure that their physical offices are in totally separate facilities. Likewise, it is important to point out the significance of solid leadership protected from political interests. These officials should be appointed by and be accountable to the legislative or parliamentary branch of government, and not to executive power. The head of an IIA may should also be able to speak freely to media about cases as necessary .

But, in addition, the research carried out by the Justice Initiative deals with material and social aspects of great importance that are not always addressed with the same seriousness, such as the difficulty of having adequate investigative agents and forensic personnel, who do not have a police background, often immediate or even simultaneous to their services within an IIA.

Also noteworthy are the sections of the report dedicated to best practices to ensure the active participation of victims in the processes of investigation and prosecution of crimes perpetrated by State agents. While the protection of victims’ rights represents a focal point of IIAs’ efforts,  investigation protocols and practices should also preserve the rights of the agents involved in the facts subject to investigation.

Aspects of jurisdiction, adjudication, protection of witnesses, whistleblowers, and forensic practice are not out of the scope of the Justice Initiative report. It also covers an interesting range of jurisdictional precedents that serve the purpose of illustrating and strengthening the recommendations made: for example, the case of Michael Gayle v. Jamaica, which has served as the basis for the State’s obligation to guarantee the independent investigation of crimes in which the police violate the right to life; and the recent decision of the Supreme Court of Nepal ordering the development of effective investigation mechanisms for cases of human rights violations, in particular extra-judicial executions.

«Who Polices the Police?» is not intended to be the definitive note on independent investigative agencies. On the contrary, it is a useful resource to provoke discussions that may contribute to the development of standards and practices for the work, always needed, of controlling that necessary evil that is the violent power of Leviathan.

Legal Officer, Open Society Justice Initiative.

Photo: AP Photo/Christian Monterrosa