Victims’ rights and reparation

Ilias Bantekas; Lutz Oette

doi:10.1017/CBO9781139048088.014

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13 - Victims’ rights and reparation

Ilias Bantekas and

Lutz Oette

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Ilias Bantekas: Affiliation:
Brunel University
Lutz Oette: Affiliation:
School of Oriental and African Studies, University of London

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Summary

Introduction

International human rights law has for a long time focused primarily on standard-setting and the establishment of institutions tasked with promoting human rights and monitoring states’ compliance with their obligations. Limited attention was paid to victims as rights-holders and to the availability of effective remedies for the vindication of rights. Yet, slowly, conceptual shifts and practices, beginning at the national level, changed prevailing perceptions of victims as largely passive beneficiaries, resulting in growing calls for victims to play a more active role, particularly in the criminal justice process. The exclusion of victims and their lack of opportunity to participate effectively in proceedings that affect their rights were increasingly seen as an anomaly, raising the fundamental question of whose interests a justice system is supposed to serve. This is reflected in the work of scholars and practitioners in the field of victimology and renewed interest in restorative justice.

This change in thinking gained international currency initially with the 1984 UNGA Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (hereinafter Victims’ Declaration) and more than twenty years later culminated in the 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 (hereinafter Basic Principles). The impetus for victims’ rights owes a lot to the increasing availability of regional and international complaints procedures. The growing recourse to these procedures has enabled, if not compelled, regional and international human rights treaty bodies to develop their jurisprudence and, to varying degrees, strengthen victims’ rights in the process. More recently, the establishment of international(ised) criminal tribunals, in particular the ICC, has led to a keener appreciation of victims’ rights, including the right to protection and the right to participation.

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Type: Chapter
Information: International Human Rights Law and Practice , pp. 522 - 566

DOI: https://doi.org/10.1017/CBO9781139048088.014 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2013

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References

Antkowiak, T., ‘An Emerging Mandate for International Courts: Victim-Centered Remedies and Restorative Justice’, Stan. J. Int’l L. 47(2) (2011), 279–332.Google Scholar

Bassiouni, C. M., ‘International Recognition of Victims’ Rights’, HRLR 6 (2006), 203–79.Google Scholar

De Feyter, K. et al. (eds.), Out of the Ashes: Reparations for Gross Violations of Human Rights (Antwerp, Oxford: Intersentia, 2006).

De Greiff, P. (ed.), The Handbook of Reparations (Oxford University Press, 2006).

Doak, J., Victims’ Rights, Human Rights and Criminal Justice: Reconceiving the Role of Third Parties (Oxford: Hart, 2008).

Du Plessis, M. and Peté, S. (eds.), Repairing the Past? International Perspectives on Reparations for Gross Human Rights Abuses (Antwerp, Oxford: Intersentia, 2007).

Evans, C., The Right to Reparation in International Law for Victims of Armed Conflict (Cambridge University Press, 2012).

Ferstman, C., Goetz, M. and Stephens, A. (eds.), Reparations for Victims of Genocide, War Crimes and Crimes Against Humanity: Systems in Place and Systems in the Making (Leiden, Boston: Martinus Nijhoff, 2009).

Lenzerini, F. (ed.), Reparations for Indigenous Peoples: International and Comparative Perspectives (Oxford University Press, 2009).

Randelzhofer, A. and Tomuschat, C. (eds.), Reparation in Instances of Grave Violations of Human Rights (The Hague, Boston, London: Kluwer Law International, 1999).

Shelton, D., Remedies in International Human Rights Law, 2nd edn (Oxford University Press, 2005).

Zegveld, L., ‘Victims’ reparations claims and international criminal courts: incompatible values’, JICJ 8(1) (2010), 79–111.Google Scholar

Doak, J., Victims’ Rights, Human Rights and Criminal Justice, Reconceiving the Role of Third Parties (Oxford: Hart, 2008), 7–11

Johnstone, G., Restorative Justice: Ideas, Values and Debates (Uffculme, Devon: Willan, 2002)

Factory at Chorzów, Claim for Indemnity, Jurisdiction (1927)

Bassiouni, M. C., ‘International Recognition of Victims’ Rights’, HRLR 2 (2006), 203–79Google Scholar

Shelton, D., Remedies in International Human Rights Law, 2nd edn (Oxford University Press, 2005), 22–30

de Greiff, P., ‘Justice and Reparations’, in de Greiff (ed.), The Handbook of Reparations (Oxford University Press, 2006), 451–77

Ferstman, C., Goetz, M. and Stephens, A. (eds.), Reparations for Victims of Genocide, War Crimes and Crimes against Humanity (Leiden, Boston: Martinus Nijhoff, 2009)

Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8 American Convention on Human Rights), OC-9/87 (6 October 1981)

Tomuschat, C., Human Rights: Between Idealism and Realism, 2nd edn (Oxford University Press, 2008), 358–72

Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13 (26 May 2004)

Nowak, M., ‘Reparation by the Human Rights Chamber for Bosnia and Herzegovina’, in De Feyter, K. et al. (eds.), Out of the Ashes: Reparations for Gross Violations of Human Rights (Antwerp, Oxford: Intersentia, 2006), 245–88

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory opinion of 9 July 2004

Decision on victims’ participation (Case of the Prosecutor v. Thomas Lubanga Dyilo) ICC 01/04–0/06–1119 (18 January 2008)

Echeverria, G., ‘Do Victims of Torture and Other Serious Human Rights Violations have an Independent and Enforceable Right to Reparation?’, IJHR 16(5) (2012), 717–36Google Scholar

Bank, R., ‘The New Programs for Payments to Victims of National Socialist Injustice’, German Yearbook of International Law (GYBIL) 44 (2001), at 307–52Google Scholar

Cyprus v. Turkey, (2002)

case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) Judgment 2005

Nilabati Behera alias Lalita Behera v. State of Orissa and Others, (1993)

Evans, C., The Right to Reparation in International Law for Victims of Armed Conflict (Cambridge University Press, 2012)

Swan, M., ‘International Human Rights Tort Claims and the Experience of United States Courts: an Introduction to the US Case Law, Key Statutes and Doctrines’, in Scott, C. (ed.), Torture as Tort: Comparative Perspectives on the Development of Transnational Tort Litigation (Oxford: Hart, 2001), 65–107

Fassbender, B., ‘Can Victims Sue State Officials for Torture? Reflections on Rasul v. Myers from the Perspective of International Law’, JICJ 6(2) (2008), 347–69Google Scholar

Draft General Comment on the obligation of States Parties to implement article 14, Working Document presented at its Forty-sixth session (9 May–3 June 2011)

German Supreme Court, Distomo Massacre case, BGH-III ZR 245/98 (26 June 2003)

Bank, R. and Schwager, E., ‘Is there a Substantive Right to Compensation for Individual Victims of Armed Conflict against a State under International Law?’, GYBIL 49 (2006), 367–412Google Scholar

Zegveld, L., ‘Remedies for Victims of Violations of International Humanitarian Law’, IRRC 851 (2003), 497–526Google Scholar

Hofman, R., ‘Draft Declaration of International Law Principles on Compensation for Victims of War (Substantive Issues)’, in International Law Association, Compensation for Victims of War (Rio de Janeiro Conference, 2008), 2–20

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General pursuant to Security Council resolution 1564 of 18 September 2004 (Geneva: United Nations, 25 January 2005)

Ferstman, C., ‘The Reparation Regime of the International Criminal Court: Practical Considerations’, LJIL 15 (2002), 667–86Google Scholar

Ferstman, C. and Goetz, M., ‘Reparations before the International Criminal Court: the Early Jurisprudence on Victim Participation and its Impact on Future Reparation Proceedings’, in Ferstman, above note 10, 313–50, and REDRESS, Justice for Victims: The ICC’s Reparation Mandate (London: REDRESS, 2012)

Velásquez Rodríguez v. Honduras, Merits, Judgment of 29 July 1988

Sarkin, J., Colonial Genocide and Reparations Claims in the 21st Century: The Socio-Legal Context of Claims under International Law by the Herero against Germany for Genocide in Namibia, 1904–1908 (Westport, CT: Greenwood, 2009)

Cobain, I., ‘Mau Mau Veterans Launch Second Round of Legal Action’, The Guardian (16 July 2012)

Bossuyt, M. and Vandeginste, S., ‘The Issue of Reparation for Slavery and Colonialism and the Durban World Conference against Racism’, HRLJ 22(9/12) (2001), 341–50Google Scholar

Du Plessis, M. and Peté, S. (eds.), Repairing the Past? International Perspectives on Reparations for Gross Human Rights Abuses (Antwerp, Oxford: Intersentia, 2007), 147–77

Tomuschat, C., ‘Darfur: Compensation for the Victims’, JICJ 3(3) (2005), 579–89Google Scholar

This is of particular importance in the transitional context, Rule-of-law Tools for Post Conflict States: Reparations Programmes (New York, Geneva: United Nations, 2008), 34–6

REDRESS, Waiting for Justice: The Politics of Delays in the Administration of Justice in Torture Cases: Practice, Standards and Responses (London: REDRESS, 2008)

Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, UN Doc. A/HRC/7/3 (15 January 2008)

REDRESS, Reparation for Torture: A Survey of Law and Practice in Thirty Selected Countries (London: REDRESS, 2003), 47–8

Assanidze v. Georgia, (2004)

Submission to the Human Rights Committee on Implementation of its Views in the Philippines (London: REDRESS, December 2011)

Antkowiak, T. M., ‘Remedial Approaches to Human Rights Violations: the Inter-American Court of Human Rights and Beyond’, Colum. J. Transnat’l L. 46 (2008), 351–419Google Scholar

McCann v. United Kingdom, 21 (1996)

Council of Europe, European Convention on the Compensation of Victims of Violent Crimes, opened for signature by Member States of the Council of Europe on 24 November 1983

Plan de Sánchez Massacre v. Guatemala, Reparations and costs, Judgment of 19 November 2004

Holtzmann, H. M. and Kristjánsdóttir, E. (eds.), International Mass Claims Processes: Legal and Practical Processes (Oxford University Press, 2007)

Cavallaro, J. and Brewer, S. E., ‘Reevaluating Regional Human Rights Litigation in the Twenty-First Century: the Case of the Inter-American Court’, AJIL 102 (2008), 768–827Google Scholar

Updated Set of Principles for the Protection and Promotion of Human Rights through action to combat Impunity, UN Commission on Human Rights Resolution 2005/81 (21 April 2005)

The Social and Economic Rights Action Centre and the Centre for Social and Economic Rights v. Nigeria, 155/96 (2001)

Hours, B., ‘NGOs and the victims industry’, Le Monde Diplomatique, English edition (November 2008)

Roht-Arriaza, N., ‘Reparations, Decisions and Dilemmas’, Hastings Int’l & Comp. L. Rev. 27 (2004), 157–219Google Scholar

Clapham, M. and Marks, S., International Human Rights Lexicon (Oxford University Press, 2005), 404–5

Mutua, M., Human Rights: A Political and Cultural Critique (Philadelphia: University of Pennsylvania Press, 2002), 27–39

Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, John Dugard, UN Doc. A/HRC/4/17 (29 January 2007)

Newton, S., ‘Law and Power in the Shadow of the Genocide’, JCL 2(1) (2007), 151–71Google Scholar

Guha-Khasnobis, B. and Vivek, S., Rights-based Approach to Development: Lessons from the Right to Food Movement in India, WIDER Research Paper (January 2007)

REDRESS, Torture: Stories of Survival (London: REDRESS, 2005)

REDRESS, Torture Survivors’ Perceptions of Reparation: Preliminary Survey (London: REDRESS, 2001)

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