Rights of Victims

The Revised Draft has evolved to a more robust victim-centric approach under Article 4 and other relevant provisions that expand the rights of victims. The Article provides substantive and procedural safeguards to victims and contains wide-ranging rights, from the ‘right to be treated with humanity and respect’ to the ‘right to their life, personal integrity, freedom of association;’ from providing victims of rights violations to ‘the right to fair, effective, prompt and non-discriminatory access to justice and remedies’ to ‘protecting them from re-victimization in the course of proceedings.’ In many ways, this expanded scope of rights of  victims builds on existing state responsibilities to provide access to justice and legal remedy as present under the UN Guiding Principles on Business and Human Rights from Principle 25 to Principle 31 and under the International Covenant on Civil and Political Rights in Article 2(3) and from Article 14 to Article 16.

The Revised Draft has also expanded the rights of victims by adding certain rights which were not present in the Zero Draft. For example, the Revised Draft includes the right of victims to submit claims to state-based, non-judicial grievance mechanisms that are separate from courts. This opens the possibility for more accessible, more flexible, and less costly ways of resolving disputes through specialized dispute resolution mechanisms that offer expertise in the area of human rights. The National Green Tribunal of India is one such example at the national level, which is established for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources.

Limitations in the actual implementation of this provision, however, can arise due to abuses of power, corruption, lack of awareness of victims’ rights, arbitrary and unfair proceedings, a lack of expertise in courts, and so forth. Moreover, there is no mechanism for appeal or review of any decision made by domestic courts in any transparent or independent international or regional forums. However, this right can be broadened by improving disclosure requirements and practices of state-based, non-judicial bodies to enable independent monitoring. Furthermore, it should not be operating majorly on the basis of dialogue as a means to resolve disputes as these processes are not impartial in most of the cases and are under the control of corporations. There is a need to enhance the participation of relevant stakeholders at these stages.

The Revised Draft further enlarged its scope under Article 4(9) and (15) by recognizing that persons, groups and organizations, which promote and defend human rights and the environment, are eligible to seek protection and to act free from threat, restriction and insecurity. The Revised Draft requires States to recognize, protect and promote all the victims’ rights expanded on by the OEIGWG. The issue of transparency and independence in the implementation of ‘adequate and effective measures’ to protect rights of environmental activists and human rights defenders under Article 4(15) remains a point of concern as it does not lay down any guidelines for the formulation and implementation of such measures.

Article 4(12)(e) talks about reimbursement of any legal expense and gives major space for frivolous and unjustified rights claims as it states that, ‘[i]n no case …’ are victims required to reimburse any legal expense to other parties. The sub-clause, however, moves one step ahead of the Zero Draft by including a right of the defendant to not be liable to reimburse due to a lack or insufficiency of economic resources where their claim failed to obtain them appropriate redress or relief as a remedy. However, this limited right does not remove the possibility of frivolous and unmeritorious claims causing a financial burden on the part of defendants.

The Revised Draft further provides that a State Party can seek mutual legal assistance from another State Party for providing assistance and protection to the victims, their families, representatives and witnesses. Under Article 10(3)(j), this is intended to help prevent further victimisation of individuals and their families even if they are present in other jurisdictions. Under Article 13, the Revised Draft also provides for the establishment of an International Fund for Victims to provide legal and financial aid to victims.

This comprehensive set of rights to ensure that victims have access to legal remedy and justice is further substantiated by providing a proper platform to present their claims before a competent court under Article 7 titled ‘Adjudicative Jurisdiction’ which gives options to victims to decide where they want to bring their claims. The question of a lack of jurisdiction and prosecution has always been a contentious issue, as illustrated in the Shell company case which concerned widespread and serious human rights violations in Nigeria by Royal Dutch Shell Oil Company. Allowing victims to bring their claims where they reside promotes the idea of providing easy and accessible justice. The Revised Draft, however, should include the concept of the forum necessitatis doctrine that allows a court to exercise jurisdiction when rejection leads to a denial of justice.

However, the Revised Draft primarily enumerates only such rights which provide access to a remedy and justice to victims but lacks a comprehensive framework for providing assistance to them in much wider contexts as provided under the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (Principles 14 – 17). One example of such comprehensive assistance framework can be found under Article 5 of the Cluster Munitions Convention, which calls for providing medical care, rehabilitation and psychological support to the victims, as well as their social and economic inclusion.

Conclusion

The Revised Draft is definitely a step forward when compared to the previous soft law instrument and the Zero Draft. Its strength lies in its efforts to accommodate the rights of victims in almost all possible areas, including the protection of human rights defenders and environmental rights.

However, two major points remain unchanged and unfocussed. First, victims hold no rights to approach international judicial bodies under the Revised Draft as compared to the rights granted to victims in certain cases to approach human rights institutions under Article 44 of American Convention on Human Rights and Article 34 of European Convention on Human Rights, for example.

Secondly, the major shift from a state-centric to a victim-centric approach is seen in various human rights treaties by the inclusion of the right to seek redress through individual complaints mechanisms to the respective committees relating to specific human rights violations, giving victims the option to approach more independent and impartial bodies than state-run forums for redressing their grievances. This right is excluded from the purview of functions of the ‘Committee’ established under Article 13 of the Revised Draft. However, treaties like the International Covenant on Economic, Social and Cultural Rights did not make any reference to the right of individual complaint but subsequently, in its Optional Protocol, it lays down the obligation of the Committee on Economic, Social and Cultural Rights, which monitors its implementation, to receive communications from individuals. The same can be emulated in the Revised Draft as well.

The victim-centric approach in this Revised Draft can be fully realised only when the victims are given absolute rights in the real sense, to protect themselves from any form of abuse as well as to make the responsible perpetrator accountable for their human rights violations.

Nidhi Singh holds a B.A. LLB (Hons.) from Chanakya National Law University and an LLM (International Law) from South Asian University. She is currently working as a Legal Research Fellow in the Trade Policy Division, Department of Commerce and Industry, Government of India.

This post reflects the author’s personal views.