The draft Basic Principles and Guidelines on the Right to Remedy and Reparation: An effort to develop a coherent theory and consistent practice of reparation for victims — Gabriela Echeverria

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 alsoPapamichalopoulos 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 alsoGarrido 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.

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