This lesson will outline the main provisions of the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. These principles were adopted as a General Assembly resolution of March 2006.

Additional international and/or national jurisprudence will also be included to elaborate on the UN principles where relevant.

(All text in italics below is taken from the UN Basic Principles and Guidelines.)

Victims’ right to remedies

Most international jurisprudence requires that state parties make reparation to individuals whose rights have been violated. The common article 2 of both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)—cornerstones of international human rights law—obliges states to provide effective remedies to victims of abuse. This includes investigation into human rights violations, prosecution of the perpetrators and giving reparation to the victims. Similar provisions are found in other international and regional instruments, such as the Convention against Torture (CAT), the Geneva Conventions, the Rome Statute, the African Charter on Human and People’s Rights, the American Convention on Human Rights and the European Convention on Human Rights.
 
While international law requires state to provide effective remedies, it does not always spell out the mechanics of providing reparation to victims. For this reason, the preamble to the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation notes that the purpose of the document is to “identify mechanisms, modalities, procedures and methods for the implementation of existing legal obligations under international human rights law and international humanitarian law”.

11. Remedies for gross violations of international human rights law and serious violations of international humanitarian law include the victim’s right to the following as provided for under international law:
(a) Equal and effective access to justice;
(b) Adequate, effective and prompt reparation for harm suffered;
(c) Access to relevant information concerning violations and reparation mechanisms.

It is important to remember that both justice and reparation constitute an effective remedy; neither one precludes the other.
 
Reparation

Reparation comprises of individual and collective measures to address the wrongs suffered by victims of human rights abuse. These include access to justice, as well as measures providing moral reparation, such as formal recognition of state responsibility, commemoration activities and the erecting of monuments, as well as pecuniary—financial—compensation. The right to reparation is therefore classified into four components: restitution, compensation, rehabilitation, and satisfaction and guarantees of non-repetition.

15. Adequate, effective and prompt reparation is intended to promote justice by redressing gross violations of international human rights law or serious violations of international humanitarian law. Reparation should be proportional to the gravity of the violations and the harm suffered. In accordance with its domestic laws and international legal obligations, a State shall provide reparation to victims for acts or omissions which can be attributed to the State and constitute gross violations of international human rights law or serious violations of international humanitarian law. In cases where a person, a legal person, or other entity is found liable for reparation to a victim, such party should provide reparation to the victim or compensate the State if the State has already provided reparation to the victim.

16. States should endeavour to establish national programmes for reparation and other assistance to victims in the event that the parties liable for the harm suffered are unable or unwilling to meet their obligations.

17. States shall, with respect to claims by victims, enforce domestic judgements for reparation against individuals or entities liable for the harm suffered and endeavour to enforce valid foreign legal judgements for reparation in accordance with domestic law and international legal obligations. To that end, States should provide under their domestic laws effective mechanisms for the enforcement of reparation judgements.

18. In accordance with domestic law and international law, and taking account of individual circumstances, victims of gross violations of international human rights law and serious violations of international humanitarian law should, as appropriate and proportional to the gravity of the violation and the circumstances of each case, be provided with full and effective reparation, as laid out in principles 19 to 23, which include the following forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.

Restitution
19. Restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property.

According to the Inter-American Court of Human Rights, full restitution includes “the restoration of the prior situation, the reparation of the consequences of the violation, and indemnification for patrimonial and non-patrimonial damages, including emotional harm” (Godinez Cruz v. Honduras, Series C No. 8, Compensatory Damages, Judgment of 21 July 1989).

Furthermore, the Court has noted that when full restitution for the injury suffered is not possible, given the irreversible nature of the damages suffered, “under such circumstances, it is appropriate to fix the payment of ‘fair compensation’ in sufficiently broad terms in order to compensate, to the extent possible, for the loss suffered” (Velasquez Rodriguez case, Interpretation of the Compensatory Damages Judgment, 17 August 1990).

Compensation
20. Compensation should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case, resulting from gross violations of international human rights law and serious violations of international humanitarian law, such as:
(a) Physical or mental harm;
(b) Lost opportunities, including employment, education and social benefits;
(c) Material damages and loss of earnings, including loss of earning potential;
(d) Moral damage;
(e) Costs required for legal or expert assistance, medicine and medical services, and psychological and social services.

It is made clear that the right to compensation includes pecuniary and non-pecuniary damages. This right is recognized in a range of international and regional instruments, including the ICCPR, CAT and the Rome Statute. In particular, these instruments stress the need for ‘appropriate’ compensation to victims, proportionate to the gravity of the violations suffered. For this reason, in Wilson v. the Philippines, the Human Rights Committee observed that “As to the violations of articles 7 and 10 suffered while in detention… compensation due to the author should take due account both of the seriousness of the violations and the damage to the author caused” [Albert Wilson v. Philippines, Communication No. 868/1999, November 2003].

The right to fair compensation by the Inter-American Court of Human Rights has been interpreted to refer to compensatory and not punitive damages. It is for this reason that non-pecuniary damages are included, referring to the victim’s pain, suffering, mental anguish, humiliation and lost enjoyment of life. This was recognized by the Sri Lankan Supreme Court:

“…it is not a punitive element that must enter into the enhancement of compensation payable, but the need to assuage the Petitioner’s hurt feelings by a recognition of the enormity of the wrong complained of… this Court acknowledges the seriousness of the harm done and that it has tried to establish some reasonable relation between the wrong done and the solatium applied” [Saman v. Leeladasa, SC Application No. 4/88, 1989].

The Inter-American Court has further noted that, “It is obvious to the Court that the victim suffered moral damages, for it is characteristic of human nature that any one subjected to the kind of aggression and abuse proven in the instant case will experience moral suffering. No evidence is required to arrive at this finding” [Loayza Tamaya case, Series 2 No. 42, Reparations, Judgment of 27 November 1998]. In other words, non-pecuniary damages can be awarded even in the absence of any proof of abuse.

International standards, including those flowing from the right to an effective remedy under article 2(3) of the ICCPR, do not prescribe any fixed or specified quantum for specific kinds of violations or injuries resulting thereof. It is for national courts or bodies to determine the amount of compensation that is appropriate in the case, which includes taking into account the relevant circumstances and factors, such as the economic situation of the country concerned and comparable awards. At the same time, relevant international standards must also be considered; ultimately, any compensation prescribed by law or awarded in practice must be appropriate, must reflect the seriousness of the violation and the harm suffered. This has been made clear from the jurisprudence and practice of international human rights treaty bodies, including the Human Rights Committee.

Rehabilitation
21. Rehabilitation should include medical and psychological care as well as legal and social services.

It is essential that victims are socially reintegrated into society, whether through medical, legal or social means. In fact, when victims are rehabilitated, they can become important voices for change. (See HRCS Lesson Series 53 for further details.)

Satisfaction and guarantees of non-repetition
22. Satisfaction should include, where applicable, any or all of the following:
(a) Effective measures aimed at the cessation of continuing violations;
(b) Verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further harm or threaten the safety and interests of the victim, the victim’s relatives, witnesses, or persons who have intervened to assist the victim or prevent the occurrence of further violations;
(c) The search for the whereabouts of the disappeared, for the identities of the children abducted, and for the bodies of those killed, and assistance in the recovery, identification and reburial of the bodies in accordance with the expressed or presumed wish of the victims, or the cultural practices of the families and communities;
(d) An official declaration or a judicial decision restoring the dignity, the reputation and the rights of the victim and of persons closely connected with the victim;
(e) Public apology, including acknowledgement of the facts and acceptance of responsibility;
(f) Judicial and administrative sanctions against persons liable for the violations;
(g) Commemorations and tributes to the victims;
(h) Inclusion of an accurate account of the violations that occurred in international human rights law and international humanitarian law training and in educational material at all levels.

23. Guarantees of non-repetition should include, where applicable, any or all of the following measures, which will also contribute to prevention:
(a) Ensuring effective civilian control of military and security forces;
(b) Ensuring that all civilian and military proceedings abide by international standards of due process, fairness and impartiality;
(c) Strengthening the independence of the judiciary;
(d) Protecting persons in the legal, medical and health-care professions, the media and other related professions, and human rights defenders;
(e) Providing, on a priority and continued basis, human rights and international humanitarian law education to all sectors of society and training for law enforcement officials as well as military and security forces;
(f) Promoting the observance of codes of conduct and ethical norms, in particular international standards, by public servants, including law enforcement, correctional, media, medical, psychological, social service and military personnel, as well as by economic enterprises;
(g) Promoting mechanisms for preventing and monitoring social conflicts and their resolution;
(h) Reviewing and reforming laws contributing to or allowing gross violations of international human rights law and serious violations of international humanitarian law.

While addressing specific immediate needs of the victims—such as burial of bodies or judicial sanctions against the perpetrators—satisfaction and non-repetition also contribute to the longer term restorative aims of reparations. Moreover, they fall under the long term responsibility of the state to ensure that such human rights violations will not recur.

A central component of satisfaction is public acknowledgment of the violation. According to the former special rapporteur on the right to restitution, compensation and rehabilitation,

“This is not simply the right of any individual victim or closely related persons to know what happened, a right to the truth. The right to know is also a collective right, drawing upon history to prevent violations from recurring in the future. Its corollary is a "duty to remember", which the State must assume, in order to guard against the perversions of history that go under the names of revisionism or negationism; the knowledge of the oppression it has lived through is part of a people's national heritage and as such must be preserved. These, then, are the main objectives of the right to know as a collective right” [Quoted in Redress Trust, Audit Project: A Survey of the Law and Practice of Reparation for Torture in 30 Countries Worldwide, April 2003, p. 22].

In other words, proper investigation of the violation, holding the perpetrators to account, commemorating the victims and acknowledging the violation in relevant historical and legal material, are all actions to be taken by states where applicable. Much can be learnt from the people of Kwangju, South Korea who took great pains to ensure that the massacre of May 1980 was not forgotten in the country’s struggle for democracy and human rights. (See HRCS Lesson Series 37 for details.)

In many countries, independent inquiry commissions are sometimes set up to look into particular gross human rights violations. When set up in an impartial and effective manner, these can serve to not only document human rights violations as historical records, but can serve justice to society. (For further study, see HRCS Lesson Series 44 on human rights documentation and HRCS Lesson Series 34 on truth commissions.)

Ultimately, all of these actions will serve as the path to guarantee that such violations do not occur again.

Questions For Discussion

1. Discuss the strengths and weaknesses of the UN Basic Principles and Guidelines on reparation and remedies, as well as other relevant international jurisprudence.
2. What mechanisms are available in your own country/region regarding remedies and reparations of gross human rights violations? How do they compare to international standards?