Excerpt from: International Law Obligations to Provide Reparations for Human Rights Abuses
The right to reparations for wrongful acts has long been recognised as a fundamental principle of law essential to the functioning of legal systems. In 1961, Justice Guha Roy of India
That a wrong done to an individual must be redressed by the offender himself or by someone else against whom the sanction of the community may be directed is one of those timeless axioms of justice without which social life is unthinkable.
The obligation to provide reparations for human right abuses, especially gross violations of human rights, has more recently been recognised under international treaty and customary law, decisions of international bodies such as the United Nations Human Rights Committee and Inter-American Court of Human Rights, national law and practices and municipal courts and tribunals.[5]
In 1989 the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities commissioned Professor Theo van Boven to undertake a study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms.[6] A final report, including proposed basic principles and guidelines, was submitted in 1993.[7]A revised set of basic principles and guidelines was submitted in 1996.[8]
The van Boven Report examined relevant existing international human rights norms and decisions of international courts and other human rights organs. It concluded that every state "has a duty to make reparation in case of a breach of the obligation under international law to respect and to ensure respect for human rights and fundamental freedoms".[9] Van Boven states:
In accordance with international law, States have the duty to adopt special measures, where necessary, to permit expeditious and fully effective reparations. Reparation shall render justice by removing or redressing the consequences of the wrongful acts and by preventing and deterring violations. Reparations shall be proportionate to the gravity of the violations and the resulting damage and shall include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.[10]
Van Boven synthesised the content of reparations to include restitution, compensation, rehabilitation and, satisfaction and guarantees of non-repetition.[11] Restitution refers to measures such as restoration of liberty, family life, citizenship, return to one's place of residence and, return of property. These measures seek to re-establish the situation that existed prior to the violations of human rights and humanitarian law. [12]Compensation refers to monetary compensation for any economically assessable damage resulting from violations of human rights and humanitarian law.[13]Rehabilitation includes medical and psychological care as well as legal and social services.[14]Satisfaction and guarantees of non-repetition includes, inter alia, an apology (including public acknowledgment of the facts and acceptance of responsibility) and, measures to prevent recurrence of the violations. [15]
States have a duty not only to respect international human rights but also to ensure them, which may include enforcing compliance by private persons and preventing violations. Successive governments are bound by the responsibility incurred by previous governments for wrongful acts committed and not redressed.[16]
A number of significant international human rights treaties create a general duty to make appropriate reparations for violations of human rights. These include the International Covenant on Civil and Political Rights[17]International Convention on the Elimination of All Forms of Racial Discrimination[18] Convention on the Rights of the Child[19]and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[20]
Further, international instruments also support those specific measures of reparation suggested by van Boven: restitution;[21] compensation;[22]rehabilitation;[23] satisfaction and guarantees of non-repetition.[24]
Finally, a basic rule of international customary law is international responsibility. It recognises that the breach of any international obligation by a state or organ of a state constitutes an international tort and that the commission of any international tort involves a corresponding duty to make reparations.[25]
It is suggested that the duty on States to make reparations for violations of human rights has attained the status of customary law through continuous and consistent affirmation in the decisions of international judicial bodies, national human rights courts and through national and regional law and practice.
International legal bodies such as the Human Rights Committee and the Inter-American Commission and Inter-American Court of Human Rights have consistently prescribed the necessary measures to be taken by States to redress violations of human rights as:
· Investigation of the facts; Bringing to justice those responsible; and Ensuring reparation to the victims.[26]
van Boven, T., (Special Rapporteur of the United Nations), Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms: Final Report, UN Doc. E/CN. 4/Sub.2/1993/8, 2 July 1993 , 7 (hereafter the "van Boven Report").
"ICCPR" Article 2(3)(a): "Each State Party... undertakes to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy...", G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966) U.N.T.S. 171, entered into force Mar. 23, 1976 .
Authors: Antonio Buti BPE (Hons), Dip Ed, MIR, LLB (Hons) (ANU) Senior Lecturer, Murdoch University School
Melissa Parke B Bus (Curtin) LLB (UNSW) LLM (Murdoch)
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