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International Legal Adviser, REDRESS
Introduction: The development of victims' rights in
international law [1]
International law governing human rights abuses has developed
rapidly since the end of the Second World War. [2] The state-centric international legal order of
the late eighteenth to early twentieth centuries safeguarded
individuals only in relation to certain conduct by states other
than their own, such as enemy nations or states where they might
reside or exercise commercial activities. The international legal
system therefore originally approached the question of what to do
about the victims of conflicts as a subsidiary element in
disputes between states, and consequently policy was driven by
the extent of a state's liability when harming another state. In
contrast, today there is an extensive corpus of law designed to
protect all individuals from the abuses of governments, including
ones own, both in times of peace and war. International law is
also increasingly concerned with the individuals involved in
atrocities, whether perpetrator or victim.
When the United Nations was created, the protection of human
rights became a fundamental aim of modern international law.
However, the lack of a a human rights 'catalogue' in the UN
Charter has led the international community to continuously
define and codify human rights. This endeavour began with the
adoption on 10 December 1948 of the Universal Declaration of
Human Rights, and since then by numerous instruments, including
the International Covenant on Civil and Political Rights and
recently the Statue of the International Criminal Court. [3]
Alongside these efforts, many organs and procedures, like the
Human Rights Committee and the Committee Against Torture, have
been created to monitor state compliance with the prescribed
norms. Regional human rights bodies, such as the European Court
of Human Rights and the Inter-American Commission and Court of
Human Rights, have also been established. Parallel efforts by the
International Committee of the Red Cross (ICRC) to update the
principles of international humanitarian law resulted in the four
Geneva Conventions of 1949 and corresponding protocols, which aim
to prevent or otherwise punish atrocities committed during
wartime. [4] The efforts of the United
Nations and its specialized agencies— together with the
regional human rights mechanisms and the
ICRC— had substantive results. Today a vast body of human
rights and humanitarian law forms part of the international
order. However, the international legal system is still weak in
two of the most common procedures existing in domestic legal
systems to remedy and deter wrongdoing: criminal sanctions and
civil remedies. Yet new mechanisms are being developed: various
forms of international justice complement national justice in the
fight against impunity, like the International Criminal Court
(ICC) and the United Nations ad hoc tribunals. [5] States are also legislating to allow
extraterritorial civil suits and criminal prosecutions. [6] As a consequence, in recent decades
the plight of victims has received increased international
attention in law and policy.
Whereas international law formerly concentrated on the
violations, it has evolved to reflect newly recognized values and
demands for accountability where international atrocities occur:
the struggle against impunity is now concentrated on the
individuals involved, that is, the perpetrator and the victim. In
Nuremberg it was pointed out that "international wrongs are
committed by individuals and not by abstract entities". [7] The rule of law thus demands that the
perpetrator be held accountable and the victim protected and
given redress. Justice necessitates reparation.
International law and the right to reparation for victims
of human rights violations
The right to reparation is a fundamental right of general
international law. As established by the Permanent Court of
International Justice and upheld by international jurisprudence,
the breach of an international obligation entails the duty to
make reparations. [8] The
International Law Commission has reaffirmed this principle
recently. [9] International human
rights law is not an exception to this principle: states must
provide reparation whenever there is a breach of an international
obligation, irrespective of origin. Furthermore, where states
violate their duty to respect— and ensure respect for—
human rights, an independent international obligation to provide
reparation also arises. Both international human rights treaties
and declarative instruments support this principle, and
international tribunals have recognised it. [10] Similarly, when the norms of international
humanitarian law are breached, a duty to make reparations also
arises. [11]
Global and regional human rights instruments expressly
guarantee the right to a remedy for violations. In most cases
this consists of both the procedural right to a fair hearing
(through judicial or non-judicial remedies, or both) and the
substantive right to reparations. [12]
This guarantee implies that a wrongdoing state has the primary
duty to offer redress to its victims. The role of international
tribunals is subsidiary and only becomes necessary and possible
when the state has failed to afford the required relief. [13] Reparation should be adequate,
effective, prompt, and proportional to the gravity and harm
suffered. It should include restitution, compensation,
rehabilitation, satisfaction and guarantees of non-repetition. [14] However violations in human rights
and humanitarian law are by their very nature irreparable, and
any remedy will fail to be truly proportional to the gravity of
the injury inflicted, particularly when the violations have been
committed on a massive scale. [15]
Remedies must therefore concentrate on the accountability of the
wrongdoers and on the restoration of the rights and dignity of
victims.
The right to a remedy is not only a basic principle of general
international law but is also a pillar of the rule of law and
democracy. [16] As noted, an
extensive body of international norms on reparations for abuses
of human rights and international humanitarian law has developed
since the Second World War. Nowadays, a variety of international
instruments at both the universal and regional levels refer to
the right of victims to an effective remedy, and to obtain
restitution, compensation and rehabilitation. [17] Furthermore, United Nations treaty-based
bodies and European, Inter-American and African human rights
organs have dealt extensively with the right to a remedy and
reparation as well as states' obligations to guarantee this
right. [18] Thematic and country
mechanisms of the Commission on Human Rights have also developed
comprehensive doctrine on the question.
It is clear, therefore, that a broad corpus of law on the
subject of reparations exists and that it is possible to
determine, from international instruments and jurisprudence, the
definition, scope and nature of these rights. However, the
abundant jurisprudence and international norms are extremely
dispersed. International instruments approach reparations and the
right to an effective remedy from the specific position of the
rights they are designed to protect, whether the right to life,
the right to liberty and security, freedom from torture, freedom
from slavery, or whatever else. The body of law is thus
fragmented. The sudden development and unprecedented nature of
international human rights law, as well as its rapid expansion in
recent years, has created an uneven proliferation of
international complaint mechanisms and techniques with a mixture
of remedies. Domestic laws and judgements exhibit different
standards and interpretations of the right to reparation. In
particular, national institutions created to fulfil international
obligations in the aftermath of gross and systematic violations
have taken on different legal, judicial and administrative forms,
leading to diverse responses to the right to reparation. Terms
such as "reparation", "restitution",
"compensation", "rehabilitation",
"remedy", and "redress" for human rights
violations appear in a large number of international, regional
and municipal instruments and jurisprudence, as well as in UN
resolutions and reports. Taken cumulatively, these initiatives
lead to a multiplicity of standards, principles and
interpretations that may seriously obstruct clear application of
applicable international norms on the right to reparation.
Efforts to systematize the corpus of law on the right to
reparation
In the early 1990s, the United Nations Sub-Commission on Human
Rights, recognizing the importance of the subject and the
necessity to clarify the basic standards of reparation in
international law, appointed Professor Theo van Boven as 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 studies prepared by Professor van Boven on the subject are
a valuable systematisation of this corpus of law. Furthermore,
the draft Basic Principles and Guidelines on the Right to a
Remedy and Reparation for Victims of Violations of International
Human Rights and Humanitarian Law— prepared initially by
Professor van Boven and subsequently by Professor M Cherif
Bassiouni— constitute a significant contribution to the
codification of these norms. [19]
These principles, even in draft form, are becoming a point of
reference for international jurisprudence and national practice.
The Inter-American Court of Human Rights, for example, has
referred to the draft Basic Principles in several rulings. [20] And in general, since the drafting
of these principles, the jurisprudence and doctrine from both
universal and regional systems has echoed many of their
provisions. [21] Furthermore, the
draft Basic Principles have been used as the basis for new
remedies in national and international fora, as well as a
standard for governments when implementing administrative
measures and programs for victims. [22]
The draft Basic Principles and Guidelines
The draft Basic Principles and Guidelines have two clear
goals: first, to provide for effective and enforceable remedies
for victims; secondly, to uphold the public interest by deterring
future violations. In this way, the draft Basic Principles take
into account the object and purpose of human rights treaties and
the concept of obligations erga omnes: obligations owed to
the international community as a whole, and binding irrespective
of consent. [23]
The draft Basic Principles are the result of an extensive
study of legal sources on reparation in conventional and
customary international law, and as such they reflect existing
norms. However, they do not constitute a treaty, as they were
drafted with a view to applying their provisions in light of
current and future developments. They thus crystallize priciples
already forming part of international law (existing norms), as
well as emerging concepts.
The draft Basic Principles are victim-oriented, and are
applied equally to all breaches of human rights and humanitarian
law resulting in the harm of individuals or groups; they are not
restricted to a certain type of violation. They propose a
comprehensive regime for redress that is consistent with the
latest developments in international law.
[24] For example, they establish that statutes of limitation
shall not apply to violations that constitute crimes under
international law, and that no limitation period should apply for
other violations or for civil claims when no effective remedy
existed for that violation. This principle not only takes into
account the particularity of these severe crimes and the specific
needs of the victims, but also rightly reflects a doctrine
recognized in other international instruments and jurisprudence. [25]
In an attempt to systematize the law of reparation, the draft
Basic Principles aim to answer the many questions that arise when
implementing this right: Who is entitled to a remedy? Who
can commit violations that will carry an obligation to afford
reparations? Does remedial justice demand the prosecution and
punishment of those responsible for the violations? What part
should the gravity of the offence play in the reparations
awarded? What criteria should be applied to determine the
type of reparation afforded (monetary compensation or other)? In
sum, the key elements in the draft Basic Principles are:
Definition of a victim and victims' rights
° Who a "victim" is;
° 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 and limits of states' obligations (including in the
areas of prevention, investigation, punishment; remedy and
reparation);
° The draft Basic Principles are victim-oriented, and are
applied equally to all breaches of human rights and humanitarian
law resulting in the harm of individuals or groups
° The continuing obligation of states to afford remedies, and
the obligation of succeeding governments or states to provide
reparations.
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 and continuing violations.
As stated, the goal of the draft Basic Principles is to define
the scope of the right to a remedy and reparation in
international law, and allow for future remedies. However, this
instrument is still being finalised (see annex) and the scope of
some of its provisions in international law is yet to be
clarified. Amendments may also be necessary to differentiate the
provisions reflecting existing obligations under international
law and those reflecting emerging norms, as well as to include
some of the latest developments on the subject (like the right of
victims to participate during proceedings recognized in art. 68
of the ICC Statute).
Conclusion
Remedies and reparations not only provide redress for the
victims, but also serve the community interest by punishing the
perpetrator and deterring future violations by the same or other
wrongdoers. They serve the rule of law at all levels of society
and are an essential element of justice.
Under international law, there is a well-established right
entitling victims of human rights abuses to a remedy and
reparations for their loss and suffering. The corpus of law
regulating this principle, however, is dispersed and not
systematized. The sudden opening of avenues for redress has
created a mixture of remedies. In addition, different
international, regional and municipal instruments and procedures
are currently developing standards on this right. Therefore,
there is a clear need for defined basic standards of the right to
reparation in international law. The 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.
It is essential that the United Nations system have a
universal instrument on the right to a remedy and reparation in
international law. A coherent and universal set of norms
regulating this right would:
° Guarantee that the victim is the point of departure for
the application and development of the right to reparation;
° 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";
° Reflect standards that are acquiescent to universal
application by all states; and finally,
° Ensure that the measure of damages should always correlate
to the gravity of harm suffered.
For this purpose, the draft Basic Principles represent a
necessary and invaluable reference. Their adoption, subject to
further consultations and possible changes, would be a
significant contribution to the full and adequate recognition of
the right to an effective remedy and reparations. Furthermore,
such an instrument would be a valuable tool for states to fulfil
their obligations to guarantee an effective remedy, to provide
reparation for violations of international human rights and
humanitarian law and to contribute to the prevention of such
violations.
End Notes
1 In keeping with the draft Basic Principles
and Guidelines on the Right to a Remedy and Reparation for
Victims of Violations of International Human Rights and
Humanitarian Law, in this article the term "reparation"
refers to the range of measures that may be taken in response to
an actual or threatened violation; it embraces both the substance
of relief as well as the procedure through which it may be
obtained. "Remedy" or "remedies" refers to
the (procedural) means by which a right is enforced or the
violation of a right is prevented, redressed or compensated.
Finally, the terms "reparations" and
"redress" refer to the substance of the relief
afforded, such as an award for damages or a public apology. [Back to content]
2 For a discussion of the development of human
rights law and the victim's right to a remedy, see Dinah Shelton,
Remedies in International
Human Rights Law, Oxford University Press, Oxford, 1999, pp.
1-37. [Back to content]
3 The International Covenant on Civil and
Political Rights, 16 December 1966, entered into force on 23
March 1976, GA Res. 2200A (XXI), UN Doc. A/ 6316, 1966, 999 UN T
S 171. The Statute of the International Criminal Court, 17 July
1998, entered into force on 1 July 2002, UN Doc. A/ CONF183/ 9. [Back to content]
4 Previously, the principles governing the
laws of war were those in the Geneva Convention of 1864,
reinforced by the Geneva Convention of 1906 and Hague Conventions
of 1899 and 1907, and updated by the Geneva Conventions of 1929.
[Back to content]
5 Statute of the International Criminal
Tribunal for the former Yugoslavia, UN Doc. S/ 25704, annex,
1990. Statute of the International Criminal Tribunal for Rwanda,
UN Doc. S/ RES/ 995, annex, 1994. [Back to content]
6 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, "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." UN GA Res. 3074 (XXVIII) of 3 December 1973. Many
Conventions also specify the obligation for State Parties to
implement universal jurisdiction legislation, such as the
Convention against Torture and other Cruel Inhuman and Degrading
Treatment or Punishment. UN GA Res. 39/ 46, 10 December 1984. [Back to content]
7 1 Trial of the Major War Criminals before
the International Military Tribunal, Nuremberg 1946, 41 Am. J
Int'l L 172, p. 223. [Back to content]
8 Factory at Chorzow, Jurisdiction,
Judgement No. 8, 1927, PCIJ, ser. A, no. 17, p. 29. Reparations
for Injuries Suffered in the Service of the United Nations,
Advisory Opinion, ICJ Reports, 1949, p. 184. Interpretation des
traites de paix conclus avec la Bulgarie, la Hongrie et la
Romanie, deuxieme phase, avis consultatif, CIJ, 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". ILC Draft
Articles on State Responsibility, UN Doc. A/ CN. 4/ L. 602/ Rev.
1, 26 July 2001. [Back to content]
9 See Report of International Law Commission,
53rd session, 23 April– 1 June & 2 July– 10 August
2002, Official Document of the General Assembly, 56th Session,
Addendum No. 10, A/ 56/ 10. [Back to content]
10 These include the Universal Declaration of
Human Rights (art. 8), the International Covenant on Civil and
Political Rights (arts 2.3, 9.5 & 14.6), the International
Convention on the Elimination of All Forms of Racial
Discrimination (art. 6), the Convention of the Rights of the
Child (art. 39), the Convention against Torture and other Cruel
Inhuman and Degrading Treatment (art. 14), and the Rome Statute
for an International Criminal Court (art. 75). It is also
established in the Rules of Procedure and Evidence of the
International Criminal Tribunal for the former Yugoslavia and the
International Criminal Tribunal for Rwanda (rule 106), as well as
in several regional instruments, including the European
Convention on Human Rights (arts 5.5, 13 & 41) the
Inter-American Convention on Human Rights (arts 25, 68 &
63.1), and the African Charter of Human and Peoples' Rights (art.
21.2). It is also important to mention the following
international standards: the Declaration of Basic Principles of
Justice for Victims of Crime and Abuse of Power, adopted by GA
Res. 40/ 34, 29 November 1985; Declaration on the Protection of
all Persons from Enforced Disappearance (art. 19), GA Res. 47/
133, 18 December 1992; Principles on the Effective Prevention and
Investigation of Extra-legal, Arbitrary and Summary Executions,
recommended by the Economic and Social Council resolution 1989/
65, 24 May 1989 (principle 20); and, the Declaration on the
Elimination of Violence against Women. Among international
tribunals, the principle was upheld in the ruling of the
Inter-American Court of Human Rights in the Velásquez
Rodríguez Case, ser. C, no. 4, 1989, para. 174. See also Papamichalopoulos
vs. Greece, art. 50, ECHR, ser. A, no. 330-B, 1995, p. 36. [Back to content]
11 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 (art. 91)
specifically provides for liability to pay compensation. The Rome
Statute of the ICC used the Draft Principles as a reference. A/
CONF. 183/ C. 1/ WGPM/ L. 2/ Add. 7, 13 July 1998, p. 5, note 5.
[Back to content]
12 Some instruments call for the development
of judicial remedies for the rights they guarantee, although
effective remedies could be supplied by non-juridical bodies. See
for instance, the International Covenant on Civil and Political
Rights, article 2.3. b. On the substantive right, see Jeremy
McBride, 'Access to Justice and Human Rights Treaties', 17 Civil
Justice Q 235, 1998. [Back to content]
13 Shelton, Remedies in International
Human Rights Law. [Back to content]
14 Theo van Boven, Final Report to the
Sub-Commission on Prevention and Discrimination and Protection of
Minorities, UN Commission on Human Rights, E/ CN. 4/ 1997/ 104,
16 January 1997. [Back to content]
15 Van Boven, Final Report. [Back
to content]
16 Council of Europe, Resolution 78.8 of the
Committee of Ministers, cited by G Meleander, 'Article 8', in The
Universal Declaration of Human Rights: A commentary, Asbjorn
Eide et al. (eds), Scandinavian University Press, Oxford, 1992,
p. 143. Blake v. Guatemala, Reparations, para. 63. See
also Castillo Paez v. Peru, 1997, 34 Inter-Am. Ct HR, ser.
C, paras 82– 3. Suárez Rosero v. Ecuador, 1998, 375
Inter-Am. Ct HR; 1985, 35 Inter-Am. Ct HR, 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]
17 Such as the Declaration of Basic
Principles of Justice for Victims of Crime and Abuse of Power,
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 UN Convention on the Protection of All Persons from Being
Subjected to Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment. Several regional instruments, such as
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, and the Rome Statute contains elaborate
provisions on reparations to victims. The array of instruments
regulating the laws and customs of war also contain provisions
related to the right to reparation. [Back to
content]
18 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, has
also extensively interpreted the provisions of the right to
reparation for victims of human right violations and the scope
and appropriate forms of such remedies. See for example, Caso
Velazquez Rodriguez, Indemnizacion Compensatoria, sentencia
de 21 Julio de 1989, art. 63.1 de la Convencion Americana sobre
Derechos Humanos, ser. C, no. 7, para. 25. Caso Godinez Cruz, Indemnizacion
Compensatoria, sentencia de 21 de Julio de 1989, art. 63.1,
Convencion Americana sobre Derechos Humanos, ser. C, no. 8, para.
23. Aloboetoe et al. case, Reparations, art. 63.1,
American Convention on Human Rights, judgement of 10 September
1993, ser. C, no. 15, para. 43. Soering v. United Kingdom, ECHR
App. No. 14038/ 88, judgement of 7 July 1989. Aksoy v. Turkey,
ECHR App. No. 21987/ 93, judgement of 18 December 1996. [Back to content]
19 See annex for further discussion. [Back to content]
20 See Inter-American Court of Human Rights, Bámaca
Velásquez vs. Guatemala, Reparations, judgement of 22
February 2002, para. 75. Castillo Páez vs. Peru, judgement
of 27 November 1998, para. 48. [Back to content]
21 In its General Comment No. 29 on States of
Emergency, the Human Rights Committee recalled that even during
states of emergency the right to a remedy cannot be derogated. UN
Doc. CCPR/ C/ 21/ Rev. 1/ Add. 11, 31 August 2001, para. 14.
Furthermore, the limitation contained in the draft Basic
Principles (principle 25. i– ii) that military tribunals may
only have jurisdiction over offences closely related to military
functions has been reiterated by the UN Human Rights Committee.
See Concluding Observations and Recommendations for Cameroon
CCPR/ C/ 79/ Add. 116; Guatemala, CCPR/ C0/ 72/ GTM; Kuwait,
CCPR/ CO/ 69/ KWT; Peru, CCPR/ CO/ 70/ PER, Dominican Republic,
CCPR/ CO/ 71/ DOM; Syria, CCPR/ CO/ 71/ SYR, Uzbekistan, CCPR/
CO/ 71/ UZB, and Chile, CCPR/ C/ 79/ Add. 104. See also the
Committee Against Torture, Observations on Peru A/ 55/ 44, and
Venezuela A/ 54/ 44. Durand and Ugarte c Peru, Inter-Am.
Ct HR, judgement of 16 August 2000, ser. C. no. 68, paras 117–
18. Ciraklar vs. Turkey, ECHR, judgement of 28 October
1998, and Gerger vs. Turkey, judgement of 8 July 1999. [Back to content]
22 The drafters of the ICC Statute, for
instance, intended that the draft Basic Principles would have
priority in the interpretation of the Statue. A/ CONF. 183/ C. 1/
WGPM/ L. 2/ Add. 7. The draft Basic Principles have also been
used as a point of reference by, for example, the US Secretary of
State in requesting the Northern Ireland Human Rights Commission
consult and advise the Secretary on the scope of a Bill of Rights
for Northern Ireland. When dealing with victim's rights, the
Commission relied on the standards in the draft Basic Principles.
'Making a Bill of Rights for Northern Ireland', consultation
document by the Northern Ireland Human Rights Commission,
September 2001. [Back to content]
23 Human rights obligations are erga
omnes, and all states have the right to vindicate them. Barcelona
Traction Case (Belgium v. Spain), 1970 ICJ 4, p. 32. See
Shelton, Remedies in International Human Rights Law, pp.
24 & 48. [Back to content]
24 The principles oblige states to enforce
domestic and foreign judgments against private individuals (para.
19, principle IX), reinforcing the concept of universal
jurisdiction. Together with paragraph 18— establishing that
the state is ultimately responsible to provide reparation—
this provision creates a comprehensive regime of redress. [Back to content]
25 Principle IV acknowledges that many
victims of human rights violations who wish to pursue remedies
may only have gained access to effective remedies after extended
periods of time, though such remedies might have always existed.
This is often the case with victims seeking remedies in countries
of asylum. Equally, victims suffering from trauma may not have
been in a position to pursue civil claims within the traditional
deadlines assigned for common crimes and torts. Other
international instruments that reflect this doctrine include the
Rome Statute of the ICC, UN Doc. A/ CONF. 183/ 9, and the
Convention on the Non-Applicability of Statutory Limitations to
War Crimes and Crimes against Humanity, ST/ HR/ UN GA Res. 2391
(XXIII), 26 November 1968. See also Garrido y Baigorria v.
Argentina, Reparations, 39 Inter-Am. Ct HR, judgement of 27
August 1998. [Back to content]
Annex: Brief background on the development of the draft Basic Principles and Guidelines on the Right to Remedy and Reparation
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 in 1997. The draft Basic
Principles and Guidelines on the Right to a Remedy and Reparation
for Victims of Violations of International Human Rights and
Humanitarian Law 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 seminars to consider the question. It took into
account not only the draft guidelines on restitution,
compensation and rehabilitation but also those relating to the
question of impunity (the Joint Principles E/ CN. 4/ Sub. 2/
1997/ 20/ Rev. 1, Annex II). The report contained information on,
among other things: 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 (UN GA Res. 40/ 34); and, an
assessment of the provisions on reparations in the Statute of the
International Criminal Court (UN Doc. A/ CONF. 183/ 9). 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 draft Basic
Principles 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 draft Basic Principles 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. It also urges the
establishment, strengthening and expansion of national funds for
compensation to victims, 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 the text of the draft Basic Principles to all Member
States, and requested that comments on the text be submitted to
the Office of the High Commissioner. The resolution also
requested the Commission 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. Pursuant to resolution 2002/
44 the UN High Commissioner for Human Rights convened a
consultative meeting to finalise the "Basic principles and
guidelines on the right to a remedy and reparation for victims of
violations of international human rights and humanitarian
law" in Geneva from 30 September to 1 October 2002. A
recommendation to establish an appropriate and effective
mechanism to finalise the Basic Principles and Guidelines was
adopted and will be transmitted to the Commission for
consideration at its 59th session. The recommendation further
established that such a mechanism should take into account the
discussions and conclusions of the consultative meeting, as well
as consult and cooperate with interested governments, IGOs and
NGOs, and the experts Professors Theo van Boven and M Cherif
Bassiouni.
Posted on 2003-01-17
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