A/HRC/15/26
humanitarian law. International standards pertaining to the use of forensic science are not
unified. It is necessary, therefore, to further analyse the impact on human rights of the use of
forensics and especially forensic genetics more generally, outside the crime prevention
context.
49.
Human Rights Council resolution 10/26 appropriately attributes the competency for
the development of adequate standards for the exercise of forensics to the relevant scientific
community. Nevertheless, the exercise of forensic science needs to be scrutinized not only
within the scientific community with a view to applicable scientific standards and practice,
but also to its impact on human rights.
Jurisprudence
50.
While the development of forensic science has significantly enhanced the
capabilities of governments to fulfil, inter alia, their human rights obligations, if applied
without appropriate regulatory standards, it has the potential to trump individual rights. One
recent court decision, for instance, demonstrates just how the application of forensic science
impacts individual rights in the criminal law context. In the case of S. and Marper v. the
United Kingdom2 the European Court of Human Rights held that the application of forensic
science and in particular forensic genetics needs to conform to human rights standards, as
enshrined in the European Convention on Human Rights (ECHR).
International instruments
51.
The International Convention for the Protection of All Persons from Enforced
Disappearance sets out, inter alia, the use to which personal information can be put in the
case of such disappearance; the duties of States parties in relation to the victims of enforced
disappearance, including children who are victims themselves or are the children of victims;
and the right of victims to know the truth about the circumstances of enforced
disappearance, and the progress and results of any investigation.
52.
Four other international legal instruments also address a number of ethical issues
that are becoming increasingly apparent due to the rapid development of genetic science and
its various applications. The intrusion on private life and the right to information are the
areas most affected by these developments. While in a number of cases the concern was the
legality of an infringement on rights without the consent of the person concerned, many
applications of forensic genetics, for example in identifying missing persons in post-conflict
and disaster situations, are being conducted through the voluntary participation of
individuals, such as relatives. The only way to legitimize the intrusive application of genetic
science, in such a context, is through the informed consent of the potential data subjects.
53.
The Convention on Human Rights and Biomedicine (Oviedo Convention, 1997)
stipulates the major principles on which subsequent instruments dealing with the topic
continue to build. It provides a common framework for the protection of human rights and
human dignity in both long-standing and developing areas concerning the application of
biology and medicine.3 The Convention affirms a well-established rule that no one can be
forced to undergo a medical intervention without his/her consent. Consent has to be free and
informed and given on the basis of objective information from the responsible health-care
professional as to the nature and the potential consequences of the planned intervention or
of its alternatives, in the absence of any pressure from anyone.
2
3
S and Marper v. the United Kingdom (App. No. 30562/04) [2008] ECHR 1581 (4 December 2008)
Explanatory report on the Convention on Human Rights and Biomedicine available at
http://conventions.coe.int/treaty/en/Reports/Html/164.htm.
13
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