The Right to a Remedy and to Reparation for Gross Human Rights Violations - A Practitioner's Guide

Summary: This Practitioners’ Guide seeks to outline the international legal principles governing the right to a remedy and reparation of victims of gross human rights violations, by compiling international jurisprudence on the issue of reparations.

All victims of human rights violations have a right to an effective remedy and to
reparation. While this is a recognized consequence of state responsibility for
human rights violations, its modalities are often neglected. International legal
provisions on this is issue are disparate, frequently vague, and do not follow a
uniform terminology. The detailed aspects of states’ duty to guarantee repara-
tion have been developed and refined in international jurisprudence. Over
time, many principles have been recognized and strengthened by different inter-
national bodies. While interpretation and terminology differs from system to
system, it is possible to identify a coherent set of principles on the right to a
remedy and reparation. On the basis of these acquired legal standards, the
Commission on Human Rights has adopted the Basic Principles and Guide-
lines on the Right to a Remedy and Reparation for Victims of Gross Violations
of International Human Rights Law and Serious Violations of International Hu-
manitarian Law (hereinafter: UN Principles on Reparations) at its 61st session in
April 2005.2 At its 60st session, the General Assembly has adopted the UN
Principles on Reparations (resolution 60/147 of 16 December 2005).

This Practitioners’ Guide seeks to outline the international legal principles
governing the right to a remedy and reparation of victims of gross human
rights violations, by compiling international jurisprudence on the issue of
reparations. The main sources for the Guide are the jurisprudence of the
United Nations human rights treat y bodies, the Inter-American Court and
Commission of Human Rights, the European Court of Human Rights and
the Afr ican Commission on Human and Peoples’ Rights. It also takes ac-
count of the practice of the UN Commission on Human Rights and its
Special Procedures, the General Assembly and the Security Council.
The Guide is aimed at practitioners who may find it useful to have interna-
tional sources at hand for their legal, advocacy, social or other work. It is
intended for lawyers, magistrates and other members of the legal profession,
governments, international and non-governmental organisations and hu-
man rights defenders. Following a simple structure, it reviews the practice
and jurisprudence of each international body on the addressed subjects. Its
purpose is to provide quick guidance on the jurisprudence and practice of
international organs.

The Guide first recalls the state’s general dut y to respect, protect, ensure
and promote human rights, particularly t he general duty of the state and
the genera l consequences f lowing from gross human rights violations
(Chapter I) It then defines who is entitled to reparation: victims are, of
course, the first beneficiaries of reparations, but other persons also have a
right to reparation under certain circumstances (Chapter II) The Guide
(Chapter II) goes on to address the right to an effective remedy, the right to a prompt,
thorough, independent and impartial investigation and the right to tr uth
(Chapters III-V) It then addresses the consequences of gross human rights
(Chapter III-V) violations, i.e. the duty of the state to cease the violation if it is ongoing and
to guarantee that no further violations will be committed (Chapter VI) It
(Chapter VI) continues by describing the diff erent aspects of the right to reparation, i.e.
the right to restitution, compensation, rehabilitation and satisfaction
(Chapt er VII) While the duty to prosecute and punish perpetrators of
(Chapt VII) human rights violations is not necessarily part of the reparation as such, it is
so closely linked to the victim’s right to redress and justice that it must be
addressed in this Guide (Chapter VIII) Frequent factors of impunity, such
(Chapter VIII) as trials in military tribunals, amnesties or comparable measures and stat-
utes of limitations for crimes under international law are also discussed (Chapter IX)
(Cha pter IX)

To be complete, a study on remedies and reparations should equally take
into account comparative national practice, legislation and jurisprudence.
Indeed, it is in the realm of domestic law that the most comprehensive,
extensive, and creative forms of reparations have been developed. However,
this study cannot address these developments, as it confines itself to interna-
tional law and practice, so as to provide materials and sources for practitio-
ners who want to use international law to advance national practice and
legislation.