The Right to Reparations for Acts of Torture: What Right, What Remedies?*
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96 STATE OF THE ART The right to reparations for acts of torture: what right, what remedies?* Dinah Shelton** 1. Introduction international obligation must cease and the In all legal systems, one who wrongfully wrong-doing state must repair the harm injures another is held responsible for re- caused by the illegal act. In the 1927 Chor- dressing the injury caused. Holding the zow Factory case, the PCIJ declared dur- wrongdoer accountable to the victim serves a ing the jurisdictional phase of the case that moral need because, on a practical level, col- “reparation … is the indispensable comple- lective insurance might just as easily provide ment of a failure to apply a convention and adequate compensation for losses and for fu- there is no necessity for this to be stated in ture economic needs. Remedies are thus not the convention itself.”1 Thus, when rights only about making the victim whole; they are created by international law and a cor- express opprobrium to the wrongdoer from relative duty imposed on states to respect the perspective of society as a whole. This those rights, it is not necessary to specify is incorporated in prosecution and punish- the obligation to afford remedies for breach ment when the injury stems from a criminal of the obligation, because the duty to repair offense, but moral outrage also may be ex- emerges automatically by operation of law; pressed in the form of fines or exemplary or indeed, the PCIJ has called the obligation of punitive damages awarded the injured party. reparation part of the general conception of Such sanctions express the social convic- law itself.2 tion that disrespect for the rights of others In a later phase of the same case, the impairs the wrongdoer’s status as a moral Court specified the nature of reparations, claimant. Remedies and sanctions thus af- firm, reinforce, and reify the fundamental 1) Chorzów Factory (Ger. v. Pol), Jurisdiction, values of society. 1927 PCIJ, ser. A, No. 9, para. 184 (Apr. 11). International law has long insisted that a state act or omission in violation of an 2) Chorzów Factory (Ger. v. Pol.), Merits, 1928 PCIJ (ser. A) No. 17 (Sept. 13), at 29 (“[I]t is a principle of international law, and even a general conception of law, that any breach of an engage- ment involves an obligation to make reparation.”). According to Fitzmaurice, “[T]he notion of inter- national responsibility would be devoid of content *) Unabridged keynote lecture if it did not involve a liability to ‘make reparation Volume 17, Number 2, 2007 in an adequate form’.” Gerald Fitzmaurice, The URE T **) The George Washington University Law School, Law and Procedure of the International Court of OR 6 T Washington D. C. Justice (1986). 97 STATE OF THE ART holding that “it is a principle of international ternational Law Commission’s Draft Articles law that the breach of an engagement in- on State Responsibility5 reaffirmed them, volves an obligation to make reparation in an but they also innovated in significant ways adequate form.”3 According to the Court: to reinforce broader community interests in upholding the international rule of law. The essential principle contained in the The ILC innovations reflect the fact that actual notion of an illegal act ... is that repa- reparations not only help address the needs ration must, so far as possible, wipe-out all of the injured party, they avoid a climate of the consequences of the illegal act and re- impunity and preserve principles of legality. establish the situation which would, in all In this respect, reparations for human rights probability, have existed if that act had not violations not only may provide a remedy for been committed. Restitution in kind, or, if past abuse, but may help persuade those in this is not possible, payment of a sum cor- power to comply with human rights norms responding to the value which a restitution in the future and thus reduce the incidence in kind would bear; the award, if need be, of violations. of damages for loss sustained which would The ILC Draft Articles largely conceive not be covered by restitution in kind or pay- of reparations as a set of duties imposed on ment in place of it – such are the principles a wrong-doing state in the framework of the which should serve to determine the amount traditional inter-state law of state responsi- of compensation due for an act contrary to bility. This presentation considers the extent international law.4 to which the inter-state obligations set forth have been transformed into an international These interrelated principles – that an in- right of reparations for individuals who have ternational delict generates an obligation of been tortured or suffered other abuse at the reparation, and that reparation must insofar hands of state agents. It also looks at the as possible eradicate the consequences of nature of the procedural and substantive the illegal act – are the foundation of the remedies that form part of modern human international law on remedies. The 2001 In- rights law. It concludes that the right to 3) Chorzow Factory, Jurisdiction, supra n. 1 at 21, in Report of the International Law Commission reaffirmed in the Reparation for Injuries Suffered on the Work of Its Fifty-third Session, UN GAOR, in the Service of the United Nations (Advisory 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 Opinion, 1949 ICJ REP., para. 184. The ICJ has (2001), available at <www.org.un/law/ilc>, re- indicated that the basic principle of reparation printed in James Crawford, The International Law articulated in the Chorzow Factory case applies Commission’s Articles on State Responsibility: T to reparation for injury to individuals, even when Introduction, Text and Commentaries (2002). OR T a specific jurisdictional provision on reparation is URE contained in the statute of a tribunal. Application 6) Article 3 of the Hague Convention Regarding Volume 17, Number 2, 2007 for Review of Judgment No. 158 of the UNAT, the Laws and Customs of Land Warfare obliges Advisory Opinion, 1973 ICJ Rep. 197-198 (July contracting parties to indemnify for a violation of 12), citing Case Concerning the Factory at Chor- the regulations. Similarly, Protocol I to the Ge- zow (Merits)(Ger. v. Poland), 1928 PCIJ, ser. A, neva Conventions of 12 August 1949 and Relat- No. 17 (Sept. 13). ing to the Protection of Victims of International Armed Conflicts states that any party to a conflict 4) Factory at Chorzów, Merits, supra n. 2 at 47. who violates the provisions of the Geneva Con- ventions or the Protocol “shall ... be liable to pay 5) Draft Articles on Responsibility of States for compensation.” Internationally Wrongful Acts, pt. 2, Arts. 28-41, 98 STATE OF THE ART reparations is a part of international human The remedial task is to convert this law rights law, contained in global and regional into results by providing redress and deter- human rights treaties and other normative rence. The element of enforceability in fact instruments, including those concerned with is often included in the definition of legal international humanitarian law6 and interna- rights,10 because a right entails a correla- tional criminal law.7 The growing consensus tive duty to act or refrain from acting for on reparations has had a clear impact in the benefit of another person.11 Unless this national and international venues. The de- duty is somehow enforced or enforceable, mands of justice that underlay these devel- it may be seen as only a voluntary obliga- opments will continue to be pressed in these tion that can be fulfilled or ignored at will. venues as states grapple with the aftermath The aim of remedies, to vindicate interests of serious abuses. that have been injured, thus requires that human rights law, representing fundamental 2. Treaty obligations interests, develop not only a primary theory The protection of human rights is gener- of what duties are owed, but a secondary ally recognized to be a fundamental aim of theory of what duties exist when a primary modern international law. In recent decades, duty is violated. almost every international organization, re- In practice, the survivor of abuse typic- gional and global, has adopted human rights ally seeks to have government conduct norms and responded to human rights viola- declared wrongful and to have a remedy tions by opening avenues of redress for indi- imposed against the individual and the state viduals against oppressive action by member responsible for the wrong. Remedies may states. The proscription of torture is among range from relatively nonintrusive remedies, the non-derogable, most fundamental norms such as declaratory judgments and monetary of international human rights law, recognized damages, to injunctions, prohibitions and as a breach of customary international law by affirmative orders. A declaratory judgment domestic courts8 and as a jus cogens norm by merely pronounces a particular practice or international tribunals.9 The right to be free condition to be illegal, leaving officials free from torture can never be suspended or over- to choose if and how to remedy the situ- ridden, whether by claims of national security ation. A damage award attempts to assess or other purported justification. the harm that the misconduct has caused, 7) Statute of the Permanent International Crim- (prohibition against official torture is ‘universal, inal Court, Art. 75. obligatory, and definable’). 8) See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876 9) See, e.g., ICTY, Furundzija Case, Judgment of (2d Cir. 1980); Hanoch v. Tel-Oren, 726 F.2d at Dec. 10, 1998, IT-95-17/1; Eur.Ct.H.R., Al-Ad- 781 (Edwards, J., concurring) (torture is violation sani v.