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
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. [ Back to content]
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").) [ Back to content]
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;
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." [ Back to content]
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. [ Back to content]
11. The
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