Elias Davidsson Interpreted 9-11 As a Violation of Human Rights Law

by Mary W Maxwell, LLB

Many people are interested in 9-11, sensing that the facts should not be swept away by US government, media, and other entities. There are many groups, known as truth communities, that have spent much time in the 21 years since September 11, 2001, trying to figure out ways to deal with this calamity. Individual researchers, too, have worked hard to illuminate the situation or to pin blame.

In 2006, when he was living in Iceland, Elias Davidsson attended to the 9-11 issue from his perspective as a human rights advocate. In particular, he looked to human rights bodies and judiciaries to see what concepts had been developed about the right to truth. He also ran a website, juscogens.com, where he uploaded the works of truthers if they had a legal angle.

I was not aware, until today, of an article that Elias uploaded to scribd.com back in 2006, when he lived in Iceland. It has two parts, of which Part I is the kind of legal thing I just described, and Part II is about specifics of 9-11.

Since he subsequently updated the specifics of 9-11 in his 2020 book “America’s Betrayal Confirmed,” I don’t see any point in including it here. But I have copied his Part I verbatim. The footnotes are complicated, so I do not list them, but I show their numbers so any interested reader can find them at scribd.com or at Hanskoechler.com.

I have been in the habit of scoffing at human rights law, as I do not see US courts being willing to adjudicate cases in that area. So I have never paid close attention to Elias Davidsson’s writings in that area. He died in April 2022, so will not be contributing more.  I now think his Part I should get more publicity, as it is surely unique and well-developed. He was unbelievably diligent.

I have been urging conspiracy theorists to form Truth Commissions, as this is perfectly legal. (I also urge Americans to form citizen-led grand juries.) Of course I am aware that infiltrators will join the group right away in order to clog the arteries, so to speak. Still, it’s worth a try.  If you call it a “club” you have every right to exclude troublemakers from membership. Why not call it an Elias Club if your emphasis is on law? Elias Davidsson was very interested in truth commissions. Here is his 2006 essay, about 3,000 words:

1. The right to the Truth as a Democratic Right

The right to the truth regarding the circumstances in which offences against the public order and human rights have been committed is linked to the principle of democracy. The fact that a modern state possesses vast powers, including a monopoly on the use of force to repress crime and enforce the law, requires the existence of effective safeguards against potential abuse of state power. Accountability, of which the transparency of official conduct is an essential feature, aims to safeguard the public against arbitrary rule and the potential for corrupt and unlawful practices by public officials. Thus, the right to the truth, along the right to public trials and the right of access to government information, may be regarded as three types of accountability rights in a democratic society.

Although international human rights instruments do not explicitly refer to the right to the truth, this right has been referred to by human rights courts and in documents adopted by various bodies of the United Nations.7 This right is also regarded as implicit in existing provisions of human rights treaties,8 such as Article 8, 11, 14 and 25 of the American Convention of Human Rights.9 In 2005, the UN Commission on Human Rights (UNCHR) adopted an Updated Set of principles to combat impunity. The first subset of principles is entitled the Right to Know and includes the following principles:

Principle 2: The inalienable right to the truth

Every people has the inalienable right to know the truth about past events concerning the perpetration of heinous crimes and about the circumstances and reasons that led, through massive or systematic violations, to the perpetration of those crimes. Full and effective exercise of the right to the truth provides a vital safeguard against the recurrence of violations …

Principle 5: Guarantees to give effect to the right to know. States must take appropriate action, including measures necessary to ensure the independent and effective operation of the judiciary, to give effect to the right to know. Appropriate measures to ensure this right may include non-judicial processes that complement the role of the judiciary.

Societies that have experienced heinous crimes perpetrated on a massive or systematic basis may benefit in particular from the creation of a truth commission or other commission of inquiry to establish the facts surrounding those violations so that the truth may be ascertained and to prevent the disappearance of evidence. Regardless of whether a State establishes such a body, it must ensure the preservation of, and access to, archives concerning violations of human rights and humanitarian law.

The above principles reflect states’ recognition of societies’ right to know the truth about past grave violations to human rights. The UNCHR also requested that the Office of the High Commissioner for Human Rights prepare a study on the right to the truth, ‘including information on the basis, scope, and content of the right under international law’.11 The repeated invocation of this right by UN human rights organs and regional human rights courts indicates that it serves a purpose no other concept has yet fulfilled.

Truth is – philosophically – a tricky concept. In the present context, truth should be regarded as a social value rather than a metaphysical idea. The present study is based on the premise that the right to the truth is neither a fictional notion nor a frivolous demand, but a procedural and, arguably, legal right that serves an unique social purpose, particularly in relation to past gross violations of human rights.

2.The Right to the Truth as a Form of Individual Reparation

According to Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR), victims of human rights violations are entitled to an ‘effective remedy’ including the right to learn the truth on these violations.

The United Nations adopted in 1989 the U.N. Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions12 (UN Principles) and in 1991 a Manual on the implementation of these principles.13 According to paragraph 9 of the UN Principles: ‘the broad purpose of an inquiry is to discover the truth about the events leading to the suspicious death of a victim.’

In 2005, the UN General Assembly affirmed the duty of states to provide victims of human rights violations with ‘full and effective reparation …which include[s] …where applicable …[v]erification of the facts and full and public disclosure of the truth’ …and ‘[i]nclusion of an accurate account of the violations that occurred in international human rights law and international humanitarian law training and in educational material at all levels.’ 14

The Inter-American Court for the Protection of Human Rights (IACtHR) has through its jurisprudence given substance to the concept of the right to the truth: ‘[T]he right to the truth is subsumed in the right of the victim or his next of kin to obtain clarification of the events that violated human rights and the corresponding responsibilities from the competent organs of the State, through the investigation and prosecution that are established in Articles 8 and 25 of the Convention.’15 In 1998 the Inter-American Commission on Human Rights has for first time recognized that the right to the truth belongs to members of society at large as well as to the families of victims of human rights violations.16

The Duty to Investigate

In order to ascertain the truth, a human rights violation must be investigated. The Basic Principles (2005) set out the specific obligation to investigate violations in the context of the overall obligation to ensure respect for human rights: ‘The obligation to respect, ensure respect for and implement international human rights law and international humanitarian law …includes, inter alia, the duty to …[i]nvestigate violations effectively, promptly, thoroughly and impartially and, where appropriate, take action against those allegedly responsible in accordance with domestic and international law.’17

Before the adoption of the Basic Principles (2005), the UN Human Rights Committee (UNHRC), in its General Comment no. 31, pointed out that states are under the duty to protect individuals subject to their jurisdiction not just against violations of the [ICCPR] by [their] agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights … There may be circumstances in which a failure to ensure Covenant rights …would give rise to violations by States Parties of those rights, as a result of States Parties’ permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities.18

The ‘Minnesota Protocol’, which comprises Part III of the United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions,19 lists desirable procedures of an inquiry into the circumstances surrounding a suspicious death. These include, inter alia, specific tasks to be accomplished at the crime scene, the processing of evidence, avenues of investigation and identification and interviews of witnesses. The ‘Minnesota Protocol’ also provides a guideline for the establishment of independent commissions of inquiry and the performance of autopsies.

While states possess wide discretionary powers to decide when an investigation of a violation of human rights is warranted and how the investigation is conducted, the principle of good faith provides, along with other criteria, a tool to gauge the adequacy of such an investigation.

Standards of Investigation

While states are under the obligation to investigate violations of human rights and international humanitarian law, they sometimes attempt to avoid investigations, which may embarrass or implicate high officials. In order to cover up official complicity states sometimes stage an investigation designed to fail. The IACtHR explicitly warned against this possibility: ‘[T]he State has the duty to commence ex officio and without delay, a serious, fair, and effective investigation which is not undertaken as a mere formality condemned in advance to be fruitless.’20

The notion that failure to effectively investigate arbitrary killings could itself be a violation of human rights has been confirmed in numerous judgments by the ECHR. In these judgments the court addressed five criteria that permit the evaluation of the effectiveness of an investigation, namely: promptness, thoroughness, impartiality, independence and transparency.

(i) Effectiveness of investigations

The requirement of effectiveness of investigations has been addressed by the ECHR in numerous court judgments. A review of these judgments reveals that the Court used the expression ‘effective investigation’ to mean the adequacy of an investigation. The Court considered that ‘the nature and degree of scrutiny which satisfies the minimum threshold of [an] investigation’s effectiveness depends on the circumstances of the particular case. It must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work.

It is not possible to reduce the variety of situations which might occur to a bare checklist of acts of investigation or other simplified criteria.’21  In determining whether effective investigations of alleged violations of human rights had taken place, the Court examined whether these investigations had been prompt, thorough, impartial, independent and sufficiently transparent.

While human rights courts generally avoid implying that ineffective investigations of human rights violations represent deliberate obstruction or a cover-up by the state, the ECHR expressed its view in one case that ‘the astonishing ineffectiveness of the prosecuting authorities …can only be qualified as acquiescence in the events’.22

The ECHR has also considered that a violation by a government of the right to life can be inferred from the failure by the government to provide ‘a plausible explanation …as to the reasons why indispensable acts of investigation have not been performed.’23

(ii) Promptness of investigations

The duty of an investigation’s promptness had also been addressed by the ECHR in numerous judgments. The necessity of promptly investigating the use of lethal force ‘may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.’24 The passage of time ‘will inevitably erode the amount and quality of the evidence available and the appearance of a lack of diligence will cast doubt on the good faith of the investigative efforts, as well as drag out the ordeal for the members of the family.’25 A substantial delay in the investigation may constitute ‘a breach of the obligation to exercise exemplary diligence and promptness.’26

(iii) Thoroughness of investigations

According to paragraph 9 of the UN Principles: There shall be thorough, prompt and impartial investigation of all suspected cases of extra- legal, arbitrary and summary executions, including cases in which complaints by relatives or other reliable reports suggest unnatural death in the above circumstances…. The Purpose of the investigation shall be to determine the cause, manner and time of death, the person responsible, and any pattern or practice, which may have brought about that death. It shall include an adequate autopsy, collection and analysis of all physical and documentary evidence and statements from witnesses…

In the case-law of the ECHR we find that that the lack of thoroughness (or effectiveness) was inferred from omissions by the state, such as failure by the investigating authorities to take reasonable steps to secure evidence;27 ignorance of obvious evidence (failure to ‘connect the dots’);28 failure to collect all the evidence that could have clarified the sequence of events;29 failure to report troubling facts;30 failure to interrogate certain people or to ask certain questions in interrogations;31 failure to ascertain possible eye-witnesses and failing to search for corroborating evidence;32 failure to ascertain whether certain reported documents in fact existed;33 failure to clarify important inconsistencies;34 failure to consider alternative hypotheses for unnatural death;35 lack of explanations for irregularities;36 failure to preserve evidence at the scene (of the crime) and taking all relevant measurements;37 and failure to inquire about motives.38

The aforementioned examples reveal the large range of means available to, and used by, states to undermine investigations into violations of the right to life.

(iv) Independence of investigations

The UN Human Rights Committee emphasizes the need for ‘administrative mechanisms’ to ‘investigate allegations of violations (…) through independent and impartial bodies.’39

The UN Principles specify that [i]n cases in which the established investigative procedures are inadequate because of a 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 recognised 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 in these principles.40

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.41

The UN Principles mention particularly the necessity to ensure that those conducting the autopsy be independent from ‘any potentially implicated persons or organizations or entities.’42

The ECHR repeatedly mentioned the necessity ‘for the persons responsible for and carrying out the investigation to be independent from those implicated in the events’.43 The Court added: ‘This means not only a lack of hierarchical or institutional connection but also a practical independence.’44

(v) Impartiality of investigations

Impartiality requires that investigators examine with an open mind all relevant evidence, including that which contradicts their ‘firm conviction’45 and include in the scope of their investigation the possibility of official involvement in the crime, particularly when they are put on notice about suspicious activities by official entities.46 In order to ensure the impartiality of an investigation, witnesses ‘shall be protected from …any …form of intimidation’47, particularly by state officials.

(vi) Transparency of investigations

According to paragraph 16 of the UN Principles ‘[f]amilies 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.’48

The reporting requirements of an investigation are also spelled out in the UN Principles: 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.49

The ECHR explicitly related the need for transparency of investigations to the democratic right of official accountability:

Remedies must be effective in practice, not just in theory, with a sufficient element of public scrutiny to ensure true accountability. In particular, alleged violations of the right to life deserve the most careful scrutiny.   Where events lie wholly or largely within exclusive knowledge of the authorities…strong presumptions of fact will arise in respect of injuries and death, which occur. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation.50

Here is one example of the reasoning by the ECHR regarding the lack of transparency in an investigation: The Court notes …that throughout the investigation the applicant and the rest of the family were entirely excluded from the proceedings. Contrary to the usual practice under national law, they were not granted the official status of victims in criminal proceedings, a procedural role which would have entitled them to intervene during the course of the investigation.

Even assuming that the family’s participation could have been secured otherwise, this was not the case here. The terms of their access to the file were not defined. They were never informed or consulted about any proposed evidence or witnesses, including the appointment of posthumous psychological and psychiatric experts, so they could not take part in instructing the experts. The applicant did not receive any information about the progress of the investigation and, when it was discontinued on 10 October 2002, he was only notified five months later.51

Summary

States bear an obligation to establish the truth on gross violations of human rights committed within their jurisdiction. Moreover, internationally adopted standards exist which permit an objective assessment of the adequacy of official investigations into alleged gross violations of human rights. There exist, however, impediments to the right to the truth other than those resulting from inadequate investigations.

Such impediments include: compensation schemes designed to prevent judicial discovery procedures52, plea bargains53, statutes of limitations, State and official immunities, prohibitions of retrospective application of criminal law even when the conduct was criminal under international law at the time it occurred, political interference with decisions to investigate and prosecute and stipulations by which defendants and prosecutors agree to recognize certain facts, even if these facts are untrue or unproven. These additional impediments to the truth will not be examined in this article although some of these have been used to prevent the establishment of the truth on 9/11.

— Elias Davidsson thanks Pétur Knútsson and Þorbjörn Broddason of the University of Iceland, for their valuable observations and suggestions.