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Reparation goes to the very
heart of human protection—it has been
recognized as a vital process in the
acknowledgment of the wrong to the victim, and a
key component in addressing the complex needs of
victims in the aftermath of violations of
international human rights and humanitarian law.
Background
In the early 1990s, the Sub-Commission on Human
Rights appointed Professor Theo Van Boven Special Raporteur to
consider the right to restitution, compensation and
rehabilitation of gross violations of human rights and
fundamental freedoms and to prepare draft guidelines on this
question in the light of existing relevant international
instruments. The Special Rapporteur submitted the final version
of the principles in 1997. The draft basic principles and
guidelines were sent to the Commission on Human Rights for
consideration where they received substantive comments by states,
intergovernmental and non-governmental organizations. In 1998,
the Commission on Human Rights appointed Professor M. Cherif
Bassiouni, as independent expert to prepare a revised version of
the draft basic principles taking into account the comments and
views of states, intergovernmental and non-governmental
organizations and to submit it to the Commission at the
fifty-fifth session with a view to its adoption by the General
Assembly. Professor M. Bassiouni submitted the final report in
January 2000.
The Commission on Human Rights requested the UN
Secretary-General to circulate the report to all UN Member
States, and the High Commissioner to hold a consultative meeting
for all interested governments, intergovernmental organizations
and non-governmental organizations with a view to finalizing the
principles and guidelines on the basis of comments submitted. The
dates of this meeting have now been scheduled for 30
September –1 October.
[1]
The Key Elements in the Draft Basic
Principles and Guidelines are:
Definition of Victim and Victims’
Rights
- Who is a "victim";
- The treatment of victims;
- The right to an effective remedy and
access to justice;
- The right to reparation and forms of
reparation;
- Non-discrimination among victims.
States’ Obligations
- The obligation of states to respect,
ensure respect for and enforce international human rights
and humanitarian law;
- The scope of states’ obligation (e.g.
prevention, investigation, punishment; remedy,
reparation).
Procedural Issues
- Incorporation within domestic law of
appropriate provisions providing universal jurisdiction
over crimes under international law (extradition,
judicial assistance and assistance and protection to
victims and witnesses);
- Statute of limitations;
- Public access to information.
Why is it Important to have a Body of
Principles and Guidelines of the Right to Reparation?
- Rapid development of international
criminal law: reparative justice
It is a general principle of public
international law that any wrongful act – i.e. any
violation of an obligation under international law –
gives rise to an obligation to make reparations. [2]
Reparations include restitution, compensation,
rehabilitation, satisfaction and guarantees of
non-repetition. The right to a remedy for victims of
violations of human rights and international humanitarian
law has been referred to not only as a basic principle of
general international law but as one of the basic pillars
of the rule of law and a democratic society. [3]
The legal principle of reparation has
existed for centuries and, as a goal, is grounded in
restorative justice theory, an ancient way of thinking
about justice that goes beyond retribution, that has
recently developed into more concrete norms and rights in
criminal justice systems, including international
criminal law. An extensive body of international norms
relating to reparations for abuses of human rights and
international humanitarian law has developed since World
War II. Various forms of international justice currently
complement national justice in the fight against
impunity; more and more states are implementing
legislation to allow extraterritorial civil suits and
criminal prosecutions. This has a direct impact on
reparations as established in Principle 3 of the 1973 UN
Principles of International Co-operation in the
detection, arrest, extradition and punishment of persons
guilty of war crimes and crimes against humanity: [4]
"States shall co-operate with each other on
bilateral and multilateral basis with a view to halting
and preventing war crimes against humanity, and shall
take the domestic and international measures
necessary for that purpose."
It is essential, therefore, to
clarify basic standards for international and domestic
measures, be it criminal or civil, preventative,
investigative, or compensatory. Determining the basic
international standards of the right to reparation will
also define the concept and scope of this right in
municipal laws.
- Diverse Sources of the Right to
Reparations: international law and
judicial/administrative regulations in municipal laws
Reference to terms such as
"reparation," "restitution,"
"compensation," "rehabilitation,"
"remedy," and "redress" in the
context of human rights violations and international
humanitarian law appear in a large number of
international, regional and municipal instruments and
jurisprudence, as well as in UN resolutions and reports.
In addition to the Declaration of Basic
Principles of Justice for Victims of Crime and Abuse of
Power,[5]
the Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights, the
International Convention on the Elimination of All Forms
of Racial Discrimination, the Convention of the Rights of
the Child, and the United Nations Convention on the
Protection of All Persons from Being Subjected to Torture
and Other Cruel, Inhuman or Degrading Treatment or
Punishment, also contain references to the right to
reparation. As well, several regional instruments, e.g.
the Inter-American Torture Convention, contain the
obligation of states to afford reparation. The African
Charter of Human and Peoples’ Rights, the American
Convention of Human Rights and the European Convention of
Human Rights include the obligation to afford effective
remedies as well as adequate compensation. The Statutes
of the two UN Ad Hoc Tribunals make reference to the
right to compensation
[6] and the Rome
Statute [7]
contains elaborate provisions on reparations to
victims.[8]
The array of instruments regulating the laws
and customs of war also contain provisions related to the
right to reparation.
[9] Furthermore, the
jurisprudence and commentaries of treaty-based bodies
like the Human Rights Committee and the Committee Against
Torture have explicit references to the right of victims
to effective remedies, restitution, rehabilitation and
compensation. The Inter-American Commission and Court of
Human Rights, together with the European Court of Human
Rights have interpreted extensively the provisions of the
right to reparation for victims of human right violations
and the scope and appropriate forms of such remedies.
Finally, municipal laws and judicial
decisions expose different standards and interpretations
of the right to reparation of victims of human rights
violations. In particular, the different national
experiences of gross human rights violations where
institutions have been created to fulfil this
international obligation, have taken different legal,
judicial and administrative forms in which the scope of
the right to reparation has been significantly diverse.
This multiplicity of standards,
principles, interpretations and terms may seriously
obfuscate a clear rendering of the applicable
international legal norms the right to reparation
preventing victims from obtaining full reparations.
- Basic Standards in International law: a
point of departure for progressive development
There is a clear need for defined basic
standards of the right to reparation in international law. As
explained above, different international, regional and
municipal instruments, international tribunals, as well as
treaty-based bodies and national institutions are currently
developing standards on the right to reparation. A body of
norms containing the basic principles of the right to
reparation should be coherent and universal. This would
result in standards that are amenable to universal
application by all states, reflecting the various legal
cultures and traditions of the world, rather than those of
only one or some sections of the globe.
Having a coherent and universal
set of norms regulating the right to reparation for victims of
violations of international human rights and humanitarian law
would:
- Clarify the terminology and thus,
prevent inconsistencies that may seriously obfuscate a
clear rendering of the applicable international legal
norms on the right to "reparation";
- Guarantee that the victim will be the point
of departure for the development of the right to
reparation;
- Clarify the normative connection of
the right to reparation to both international human
rights law and international humanitarian law;
- Permit the term "gross violations of
human rights" whenever used, to be understood as to qualify
situations with a view to establishing a set of facts
that may figure as a basis for claims adjudication, rather
than to imply a separate legal regime of reparations
according to the particular rights violated; and finally;
- Ensure that the measure of damages
should always correlate to the gravity of
the harm suffered.
The legal framework for reparations exists.
However, it is important to clarify the basic pillars of the
right to reparation, their meaning, scope and interpretation, and
to ensure that there is a basic point of departure to harmonize
its rapid development.
Having a single body of international
principles and guidelines is the only way to guarantee the
ultimate goal of reparation: the non-repetition of the act.
ANNEX I
Brief background on the
development of the Draft Basic Principles and Guidelines on the
Right to Remedy and Reparation for Victims of Violations of
International Human Rights and Humanitarian Law
In the early 1990s, Professor Theo van Boven
was appointed by the Sub-Commission on Human Rights to consider
the right to restitution, compensation and rehabilitation of
gross violations of human rights and fundamental freedoms and to
prepare draft guidelines on this question. The final report of
the study Professor van Boven carried out as Special Rapporteur
contained in document E/CN.4/Sub.2/1993/8 served as the basis for
the first draft of the principles and guidelines. Between 1993
and 1997 two revised versions were prepared (see
E/CN.4/Sub.2/1996/17, 24 May 1996; and E/CN.4/1997/104, 16
January 1997); he submitted the final version of the principles
in 1997. The draft basic principles and guidelines were sent to
the Commission on Human Rights for consideration where they
received substantive comments by states, intergovernmental and
non-governmental organizations.
At its 1998 session the Commission on Human
Rights adopted resolution 1998/43 in which it appointed an
Independent Expert, Professor M. Cherif Bassiouni, to prepare the
revised version of the draft Basic Principles and Guidelines with
a view to their adoption by the General Assembly. The 1999 report
(E/CN.4/1991/65), proposed a comprehensive round of study,
discussion, conferences and/or seminars to consider the question.
It took into account not only the draft guidelines on
restitution, compensation and rehabilitation but also the draft
guidelines related to the question of impunity (the Joinet
Principles E/CN.4/Sub.2/1997/20/Rev.1, Annex II). The report
contained information on, inter alia: structural
differences between the versions; the 1997 proposed changes;
elements of reparation for victims of human rights violations;
special measures; the right to reparation; the Declaration of
Basic Principles of Justice for Victims of Crime and Abuse of
Power; [10]
and an assessment of the provisions on reparations in
the Statute of the International Criminal Court.[11]
In resolution 1999/33, the Commission stipulated that
the Independent Expert was to build on the work previously
undertaken and submit a final report to the 2000 session.
The report to the 56th Session
recalls that the prior drafts of the basic principles and
guidelines were examined in light of the Victims’
Declaration, the pertinent provisions of the Rome Statute and
other relevant UN norms and standards. The Annex to the report
contains the text of the basic principles and guidelines and
reaffirms that: victims of crimes and abuse of power should be
treated with compassion and respect for their dignity, and have
their right of access to justice and redress fully respected; the
establishment, strengthening and expansion of national funds for
compensation to victims should be encouraged, together with the
expeditious development of appropriate rights and remedies for
victims.
The Commission on Human Rights resolution
(E/CN.4/RES/2000/41) in that year requested the Secretary-General
to circulate to all Member States the text of the Basic
Principles and Guidelines prepared by the Independent Expert; and
requested states to submit their comments on the text to the
OHCHR. The resolution also requested the UNHCHR to hold a
consultative meeting in Geneva for all interested governments,
intergovernmental organizations and NGOs with ECOSOC consultative
status, with a view to finalizing the draft on the basis of the
comments submitted, and to prepare a report on the final outcome
of the meeting. In January 2002 the Office of the High
Commissioner informed the Commission that preparations were
underway to hold the consultative meeting later in 2002. The
dates of this meeting have now been scheduled for 30 September
–1 October 2002.
End Note
1. Annex
I to this Paper contains a brief background on the development of
the Draft Basic Principles and Guidelines on the Right to Remedy
and Reparation for Victims of Violations of International Human
Rights and Humanitarian Law. [
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2. Factory
at Chorzow, Jurisdiction, Judgement No. 8, 1927,
P.C.I.J., Series A, no. 17, p. 29 ; Reparations for
Injuries Suffered in the Service of the United Nations,
Advisory Opinion, I.C.J. Reports 1949, p. 184 ; Interpretation
des traites de paix conclus avec la Bulgarie, la Hongrie
et la Romanie, deuxieme phase, avis consultatif, C.I.J.,
Recueil, 1950, p. 228. . See also Article 1 of the draft Articles
on State Responsibility adopted by the International Law
Commission in 2001: Every internationally wrongful act of a State
entails the international responsibility of that State. (UN Doc.
A/CN.4/L.602/Rev.1, 26 July 2001 ("ILC draft Articles on
State Responsibility").) [
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3.
Council of Europe, Resolution 78 (8) of the Committee of
Ministers, cited by Meleander, G., "Article 8", in Eide
et al. (eds.), The Universal Declaration of Human Rights: A
Commentary, Scandinavian University Press (1992), p.143; Blake
v. Guatemala (Reparations), para.63; See also Castillo
Paez v. Peru, (1997) 34 Inter-Am. Ct. H.R. (ser. C.), paras.
82, 83; Suárez Rosero v. Ecuador, (1998) 375 Inter-Ame.
Ct. H.R. (1985) 35 Inter-Am. Ct. H.R. (ser. C.) para 65; Peru
(Reparations), judgment of 27 November 1998, para. 169; Castillo
Paez v. Peru (Reparations), judgement of 27 November 1998,
para. 106. [Back to content
]
4. U.N.
G.A. Res. 3074 (XXVIII) of 3 December 1973. [Back to content
]
5.
Declaration of Basic Principles of Justice for Victims of Crime
and Abuse of Power; U.N. G.A. Res. 40/34. [Hereinafter Victims
Declaration]. [Back to
content]
6. UN SC
Res. 827/1993 established: "the work of the Tribunal shall
be carried out without prejudice to the right of victims to seek,
through appropriate means, compensation for damages incurred as a
result of violations of international humanitarian law".
Rule 106 of the ICTY and ICTR’s Rules of Procedure and
Evidence establishes: "…b) Pursuant to the relevant
national legislation, a victim or persons claiming through the
victim may bring an action in a national court or other competent
body to obtain compensation." [
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7. The
Rome Statute for the international Criminal Court. U.N. Doc.
A/CONF.183/9 [Hereinafter the Rome Statute] [Back to content
]
8. Art 75
of the Rome Statue provides that the Court shall establish
principles relating to reparations to, or in respect of, victims,
including restitution, compensation and rehabilitation. [Back to content
]
9. Under
international humanitarian law, the Hague Convention regarding
the Laws and Customs of Land Warfare (article 3, 1907 Hague
Convention IV) includes specific requirements to pay
compensation. Likewise, the four Geneva Conventions of 12 August
1949 contain a provision of liability for grave breaches and the
1977 Additional Protocol I specifically provides for liability to
pay compensation. [Back to
content]
10.
Declaration of Basic Principles of Justice for Victims of Crime
and Abuse of Power; U.N. G.A. Res. 40/34. [
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11. The
Rome Statute for the International Criminal Court; U.N. Doc.
A/CONF.183/9. [Back to
content]
Posted on 2002-09-27
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