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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 u r e
t **) The George Washington University Law School, Law and Procedure of the International Court of
o r 6
T Washington D. C. Justice (1986). 97
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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
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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. U.K., 21 November 2001, 34 Eur. Hum. of customary international law); Tel-Oren, 726 Rts. Rep. 11 (2002). F.2d at 819–20 (Bork, J., concurring) (‘the pro- scription of official torture [is] a principle that is 10) See M. Ginsberg, On Justice in Society (1965), embodied in numerous international conventions 74; I. Jenkins, Social Order and the Limits of Law and declarations, that is “clear and unambiguous” (1980), 247. Volume 17, Number 2, 2007 . . . and about which there is universal agreement u r e t “in the modern usage and practice of nations’’ ’); 11) W. Hohfeld, Fundamental Legal Conceptions (W. o r
T Forti v. Suarez Mason, 672 F. Supp. 1531 at 1541 Cook (ed.), 1919), 38. 99
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however difficult that may be, and impose Nations Convention against Torture, Article the cost upon the wrongdoer. While there is 14, is also forthright on the topic. Its man- always a danger of commodification, money date reads: is a substitute for restitution, because what has been taken cannot be restored in fact. In Each State Party shall ensure in its legal sys- general, then, tribunals seek to create a hy- tem that the victim of an act of torture ob- pothetical by aiming to produce the situation tains redress and has an enforceable right to that would have existed if the wrongdoer had fair and adequate compensation, including not violated the rights of the victim. This the means for as full rehabilitation as possi- remedial role of tribunals is expressly man- ble. In the event of the death of the victim as dated by international human rights law. a result of an act of torture, his dependants shall be entitled to compensation.12 a. Global treaties Global human rights instruments expressly Applying these and similar provisions, nearly guarantee the right to a remedy and oblige all UN treaty bodies have discussed repar- states parties to provide a remedy when hu- ations and identified the kinds of remedies man rights are violated. In addition, the UN required, depending on the type of viola- General Assembly has adopted two declar- tion and the victim’s condition. There are ations on the subject, giving greater detail many common aspects to the approach and precision to the obligations of states. to reparations by UN treaty bodies. All of International human rights tribunals review- them strongly affirm the right of access to ing complaints of human rights violations justice before an independent and impar- have assessed state compliance with the obli- tial tribunal. They also adhere to the view gation, in the process condemning state laws that substantive reparations are a right of and policies that grant impunity to violators. victims. The term “victims” has been given The texts of the treaties are clear on broad reading to include not only the per- the duty of states parties to provide repara- son abused, but the family members of the tions for violations of rights guaranteed by person as well. A few of the more significant national and international law. The Inter- decisions are described in this section. national Covenant on Civil and Political The Human Rights Committee adopted Rights, which contains an absolute prohi- a General Comment entitled “The Nature bition of torture, contains three separate of the General Legal Obligation Imposed on articles on remedies, addressing the right States Parties to the Covenant,” concerning of access to an authority competent to af- Article 2.13 As the overarching framework T ford remedies and the right to an effective of state obligations in the Covenant, Art- r o t and enforceable remedy in Art. 2(3). Arts. icle 2 imposes both positive and negative e r u 9(5) and 14(6) add that anyone unlawfully obligations on the States Parties, including 2007 2, Number 17, Volume arrested, detained, or convicted shall have an obligation to provide redress for viola- an enforceable right to compensation or be tions committed by private parties as well compensated according to law. The United as state agents. On the procedural side, the
12) Convention against Torture and Other Cruel, 13) CCPR/C/74/CRP.4/Rev.3, The Nature of the Inhuman or Degrading Treatment, Article 14. General Legal Obligation Imposed on States Parties to the Covenant, May 5, 2003. 100
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Comment notes the importance attached stitute a crime against humanity when com- “to States Parties” establishing appropriate mitted as part of a widespread or systematic judicial and administrative mechanisms for attack on a civilian population. In the Com- addressing claims of rights violations under ment, the Committee also noted the possible domestic law.”14 Administrative mechanisms need for provisional or interim measures to are required to give effect to the general avoid continuing violations and repair harm obligation to investigate allegations of viola- at the earliest possible opportunity. tions promptly, thoroughly and effectively through independent and impartial bodies. b. Regional instruments “A failure by a State Party to investigate al- Regional human rights treaties are equally legations of violations could in and of itself concerned with ensuring that those whose give rise to a separate breach of the Coven- rights are violated have access to justice and ant.”15 In addition, cessation of an ongoing reparations. The European Convention for violation is an essential element of the right the Protection of Human Rights and Funda- to an effective remedy. mental Freedoms16 guarantees freedom from Concerning substantive redress, the torture and in Articles 6 and 13 recognizes Comment affirmed that Article 2(3) re- rights of access to justice and an effective quires states parties to make reparation to remedy when rights are violated. The Coun- individuals whose rights have been violated. cil of Europe’s Committee of Ministers re- Otherwise, the obligation to provide an ef- inforced Article 13 with a recommendation fective remedy is not discharged. Detailing adopted in 1984 that calls on all Council of this duty, the Comment suggests that the Europe member states to provide remedies Covenant generally entails compensation, for governmental wrongs.17 European Con- but, where appropriate, reparation can also vention Article 5(5) further requires that involve restitution, rehabilitation and meas- states compensate for arrests made in viola- ures of satisfaction, such as public apologies, tion of Article 5.18 Two texts of the public memorials, guarantees of non-repe- European Union also address access to tition, and changes in relevant laws and justice and compensation for victims of practices, as well as bringing to justice the crimes.19 perpetrators of human rights violations. In the Inter-American system, Article The duty to prosecute applies to viola- XVII of the American Declaration of the tions of the Covenant that amount to crim- Rights and Duties of Man,20 guarantees inal acts under either domestic or interna- every person the right to resort to the courts tional law, which is the case with acts of to ensure respect for legal rights and to torture. Commission of such acts can con- obtain protection from acts of authority
14) Id, para 15. An earlier draft said that the 17) Recommendation No. R(84) 15 on Public Li- Committee attaches “great” importance to the ability, adopted by the Committee of Ministers on topic. 18 September 1984.
15) Id, para 14. 18) Brogan v. United Kingdom (1988) 145B Eur. Ct.H.R. (ser.A) and Fox, Campbell and Hartley v. 16) European Convention for the Protection of United Kingdom (1990) 182 Eur.Ct.H.R. (ser. A). Volume 17, Number 2, 2007 Human Rights and Fundamental Freedoms, 4 u r e t November 1950, 213 U.N.T.S. 221 (hereinafter o r
T European Convention on Human Rights). 101
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that violate any fundamental constitutional with the general obligation of such States to rights. The American Convention on Hu- guarantee the free and full exercise of the man Rights goes further, entitling everyone rights recognized by the Convention to all to effective recourse for protection against persons subject to their jurisdiction (Art. acts that violate the fundamental rights rec- 1).22 The Court has also concluded that the ognized by the constitution “or laws of the obligation of Convention parties to ensure state or by the Convention”, even where the rights generally requires that remedies in- act is committed by persons acting in the clude due diligence on the part of the state course of their official duties.21 The states to prevent, investigate, and punish any viola- parties are to ensure that the competent au- tion of the rights recognized by the Conven- thorities enforce the remedies granted and, tion.23 indeed, are obliged to respect and ensure the The African Charter on Human and free and full exercise of all rights guaranteed Peoples’ Rights24 has several provisions by the Convention (Article 1(1)). These ob- on remedies. Article 7 guarantees every in- ligations are linked to the fair trial provisions dividual the right to have his cause heard, of Article 8, which requires the state to pro- including “the right to an appeal to compe- vide a fair hearing before a competent, inde- tent national organs against acts violating pendent and impartial tribunal. Article 10 of his fundamental rights as recognized and the Convention further provides that every guaranteed by conventions, laws, regulations person has the right to be compensated in and customs in force.” In addition, Article accordance with the law in the event he has 21 refers to “the right to adequate com- been sentenced by a final judgment through pensation” in regard to “the spoliation of a miscarriage of justice. resources of a dispossessed people.” Article The Inter-American Court has stated 26 imposes a duty on States Parties to the that under the Convention, States Parties Charter to guarantee the independence of have an obligation to provide effective ju- the courts and allow the establishment and dicial remedies to victims of human rights improvement of appropriate national institu- violations (Art. 25), remedies that must be tions entrusted with the promotion and pro- substantiated in accordance with the rules of tection of rights and freedoms guaranteed due process of law (Art. 8(1)), all in keeping by the Charter. The African Commission
19) See Council Framework Decision of 15 22) Velasquez Rodriguez Case (Preliminary Excep- March 2001 on the standing of victims in criminal tions), (1987) 1 Inter-Am.Ct.H.R.(ser. C) para. proceedings (2001/220/JHA, OJ L 82 of 2 March 91; Case of Las Palmeras, (2001), 90 Inter-Am.Ct. T 2001 and Council Directive 2004/80/EC of 29 H.R. (ser.C), para. 60; Case of 19 Merchants, r o t April 2004 relating to compensation to crime vic- (2004) 109 Inter-Am.Ct.H.R. (ser.C), para. 194; e r u tims, OJ L 261/15 of 6 August 2004. Serrano-Cruz Sisters, (2005) 120 Inter-Am.Ct. 2007 2, Number 17, Volume H.R. (ser.C), para. 194; Moiwana Village v. Suri- 20) Adopted 2 May 1948, O.A.S. Res. XXX, name, (2005), 124 Inter-Am.Ct.H.R. (ser.C), para adopted by the Ninth International Conference of 142. American States (1948). 23) Velasquez Rodriguez Case (Merits), (1988) 4 21) Article 25, American Convention on Human Inter-Am. Ct.H.R. (ser .C), para. 166. Rights, adopted 22 November 1969, in force 18 July 1978, OEA/ser.L/V/II.23, doc. 21 rev. 6 24) 27 June 1981, in force 21 October 1986, (1979), O.A.S.T.S. No. 36 at 1. O.A.U. Doc. CAB/LEG/67/3 Rev. 5, (1982) 21 I.L.M. 58. 102
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emphasizes the need for independence of the inal laws should receive restitution from the judiciary and the guarantees of a fair trial, responsible state. Abuse of power that is not calling attacks on the judiciary “especially criminal under national law but that violates invidious, because while it is a violation of internationally recognized norms relating to human rights in itself, it permits other viola- human rights should be sanctioned and rem- tions of rights to go unredressed.”25 edies provided, including restitution and/or compensation, and all necessary material, 3. “Soft law” instruments medical, psychological, and social assistance Declarations, resolutions and other non- and support. treaty texts adopted by UN human rights Special rapporteurs appointed by the Charter-based and treaty bodies also guar- Commission to study particular rights or antee the right to a remedy. The UN efforts duties have noted or emphasized the right have been undertaken in the context of stud- to reparations. The mandate of the Special ies on impunity, disappearances, victims of Rapporteur on Torture and other Cruel, In- crime, and historical injustices. Several of human or Degrading Treatment or Punish- these are considered here. ment has focused primarily on the preven- The United Nations Declaration of tion of torture, but has recently discussed Basic Principles of Justice for Victims of remedies for victims.27 The Rapporteur Crime and Abuse of Power26 contains broad receives information, most often provided by remedial guarantees for those who suffer non-governmental organizations, on specific pecuniary losses, physical or mental harm, cases of alleged torture and brings this infor- and “substantial impairment of their funda- mation to the attention of the government mental rights” through acts or omissions, in- concerned, which is asked for comments. cluding abuse of power. Victims are entitled The Rapporteur “requests the Government to redress and to be informed of their right to look into the matter and to see to it that, to seek redress. Victims of public officials or if the outcome of the inquiry confirms the other agents acting in an official or quasi-of- allegation is true, the perpetrators will be ficial capacity in violation of national crim- punished and the victims will be compen-
25) Af. Comm’n Hum. Rts, Comm. 129/94, Civil 1990), recommended that states base national Liberties Org’n v. Nigeria, AGH/207 (XXXII) An- legislation upon the Declaration and requested nex VIII 17, at 19. the UN Secretary-General to study the feasibility of establishing an international fund for victims of 26) U.N.G.A. Res. 40/34 of 29 November 1985. transnational crimes. Report of the Congress, A/ Paragraph 4 states that victims are entitled to CONF.144/28. The Council of Europe produced access to the mechanisms of justice and prompt the European Convention on the Compensa- redress for the harm they have suffered. Proced- tion of Victims of Violent Crimes (1983), a 1985 ures are to be expeditious, fair, inexpensive and recommendation R(85) 11 on the position of the accessible. Where appropriate, restitution should victim in the framework of criminal law and pro- be made to victims, their families or dependants cedure, and a 1987 recommendation R(87)21 on by offenders or third parties responsible for their assistance to victims and prevention of victimiza- behavior. (Para. 8) Victims of abuse of power are tion. defined as those harmed by acts which do not yet constitute violations of national criminal laws. In 27) The current mandate is described in Report Volume 17, Number 2, 2007 1990, the Eighth United Nations Congress on the of the Special Rapporteur on the question of torture u r e t Prevention of Crime and the Treatment of Of- submitted in accordance with Commission resolution o r
T fenders (Havana, Cuba, 27 August - 7 September 2002/38, E/Cn.4/2003/68, 17 Dec. 2002, para. 3. 103
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sated.” In annual reports to the Commis- tion, including the means for the fullest sion, the Rapporteur routinely recommends rehabilitation possible. Adequate, effective an end to torture and sometimes calls for and prompt reparation proportionate to the specific remedial measures. gravity of the violation and the physical and In his 2003 report, the Special Rappor- mental harm suffered should include the teur addressed a revised series of recommen- following elements: restitution, compensa- dations to UN member states which specify tion, rehabilitation (including medical and that all detained persons should have the psychological care as well as legal and social ability to challenge the lawfulness of deten- services), and satisfaction and guarantees of tion, e.g. through habeas corpus or amparo. non-repetition. Such legislation should also In addition, the Rapporteur recommended provide that a victim who has suffered vio- that an inquiry always be undertaken when lence or trauma should benefit from special there is a complaint of torture. If the com- consideration and care to avoid his or her plaint is well-founded, it should result in retraumatization in the course of legal and compensation to the victim or relatives and administrative procedures designed to pro- the trial of anyone suspected of committing vide justice and reparation.29 torture or severe maltreatment. If guilt is es- tablished, the person should be punished.28 In 1992, the Sub-Commission took up the The recommendations are clear that any question of the impunity of perpetrators amnesty or similar laws that would prevent of violations of human rights.30 The final prosecution in the name of national recon- report submitted in 1997 speaks of three ciliation should be abrogated. Paragraph (l) fundamental rights of victims: the right to of the recommendations details the various know, the right to justice, and the right to forms of redress: reparation.31 The report refers to “the right of victims or their families to receive fair Legislation should be enacted to ensure and adequate compensation within a rea- that the victim of an act of torture obtains sonable period of time”32 and annexes set redress and fair and adequate compensa- of principles on his topic, including issues
28) E/CN.4/2003/68, p. 12. and Mr. Joinet to undertake to report on civil and political rights. Resolution 1994/34 of 26 August, 29) Ibid. 1994, E/CN.4/Sub.2/1994/56, p. 81. Each rap- porteur presented reports in 1995 and 1996. See: 30) Sub-Commission Resolution 1992/23 of E/CN.4/Sub.2/1995/19; E/CN.4/Sub.2/1996/15; August 1992, approved by the Commission on E/CN.4/Sub.2/1995/18. T Human Rights in resolution 1993/43 of 5 March r o t 1993. The 1992 Vienna Conference on Human 31) The right to know includes the right to the e r u
Rights supported the efforts of the Commission truth and the duty to remember. Two specific 2007 2, Number 17, Volume and Sub-Commission to intensify opposition to proposals call for the prompt establishment of the impunity of perpetrators of serious violations extrajudicial commissions of inquiry as an initial of human rights. See the Vienna Declaration and phase in establishing the truth, and taking urgent Program of Action, A/CONF/157/3, para. II.91. measures to preserve access to archives of the pe- The special rapporteurs, El Hadji Guisse and riod of violations. The right to justice implies the Louis Joinet, prepared an interim report for the denial of impunity. The right to reparation refers 1993 session. E/CN.4/Sub.2/1993/6. In 1994, to individual measures intended to implement the the Sub-Commission split the study into two right to reparation (restitution, compensation and parts, asking Mr. Guisse to complete the report rehabilitation) as well as collective measures of in regard to economic, social and cultural rights, satisfaction and guarantees of non-repetition.
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directly relating to the right to restitution, tions in 1988, recognizing in a resolution compensation and rehabilitation of victims.33 that all victims of gross violations of human In resolution 2003/72, the Commission re- rights and fundamental freedoms should be quested the Secretary-General to appoint an entitled to restitution, fair and just compen- independent expert to study best practices sation, and the means for as full a rehabilita- and make recommendations to assist states tion as possible for any damage suffered.36 in strengthening their domestic capacity to A special rapporteur appointed by the combat impunity, making use of the prin- Sub-Commission,37 Theodoor van Boven, ciples on the topic. The study, submitted in submitted a series of reports that ended in 2004, contains a chapter on the right to rep- 1994 with a proposed a set of principles and aration,34 which it refers to as a fundamental guidelines.38 After the Human Rights Com- tenet of international human rights law. mission asked for a revision in the light of Finally, after some fifteen years of study, comments from governments and others,39 negotiations and drafting, the United Na- a new version expanded the text by adding tions in 2005 adopted Basic principles and humanitarian law violations and by articulat- guidelines on the right to remedy and reparation ing state duties before setting forth the basic for victims of gross violations of international principles on the right to a remedy. In 1998, human rights law and serious violations of in- the Commission appointed an independent ternational humanitarian law.35 The UN Sub- expert, Mr. Cherif Bassiouni, who prepared Commission on Promotion and Protection another revision of the draft basic principles of Human Rights, began its work on repara- and guidelines.40
32) E/CN.4/1998/68, Chapter II, section K. The Human Rights Commission authorized the study by resolution 1990/35 of 2 March 1990, and 33) E/CN.4/Sub.2/1997/20 of 26 June 1997 and the Economic and Social Council approved by E/CN.4/Sub.2/1997/20/Rev.1 of 2 October 1997. resolution 1990/36 of 25 May 1990.
34) Independent Study on Best Practices, including 38) Study concerning the right to restitution, com- Recommendations, to Assist States in Strengthen- pensation and rehabilitation for victims of gross vio- ing their Domestic Capacity to Combat all Aspects lations of human rights and fundamental freedoms, of Impunity, by Professor Diane Orentlicher, E/ Preliminary report submitted by Theo van Boven, CN.4/2004/88, 24 Feb. 2004. Special Rapporteur, E/CN.4/Sub.2/1990/10, 26 July 1990; Progress reports, E/CN.4/Sub.2/1991/7 35) U.N.G.A. Res. A/Res/60/147 of Dec. 16, and E/CN.4/Sub.2/1992/8; Final report, E/CN.4/ 2005. The text was previously approved by the Sub.2/1993/8. The final van Boven report was Commission on Human Rights, Res. 2005/35 of sent to the U.N. Commission on Human Rights 19 April 2005 (adopted 40-0 with 13 abstentions). for consideration at its 1994 session. Sub-Com- mission on Prevention of Discrimination and 36) Emphasis added in the text. Members of Protection of Minorities, Resolution 1993/29 of the Sub-Commission introduced the topic for 25 August 1993, E/CN.4/Sub.2/1993/45, 69-70. study after attending a conference in Canada on Governments and non-governmental organiza- the issue of World War II claims against Japan by tions were asked to comment. persons used as forced laborers who had never re- ceived reparations. Communication from Th. Van 39) E/CN.4/Sub.2/1996/17 of 24 May 1996; Boven, May 4, 2004, on file with the author. E/CN.4/1997/104, Annex, of 16 January 1997 submitted in accordance with Sub-Commission Volume 17, Number 2, 2007 37) United Nations Sub-Commission on the Pre- resolution 1996/28. u r e t vention of Discrimination and Protection of Mi- o r
T norities, Resolution 1989/13 of 31 August 1989. 40) E/CN.4/2000/62. 105
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In 2002, pursuant to Commission resolution als and failed to differentiate adequately 2002/44, an international consultation in between human rights law and international Geneva was held following which new revi- humanitarian law. While certain instruments sions were made over the next year.41 At its provided for the presentation of individual 2004 session, the Commission rather weakly claims for the violation of human rights, affirmed that “victims of grave violations of such provisions did not exist for violations human rights should receive, in appropriate of international humanitarian law. The claim cases, restitution, compensation and reha- that such a right existed under the Hague bilitation”42 and asked for yet another revi- Convention No. IV of 1907 or Protocol I sion. A final draft appeared October 1, 2004 Additional to the 1949 Geneva Conventions which the Commission adopted without was entirely unsubstantiated. While the ab- change; however thirteen states abstained sence of a legal basis for individual repara- from voting in favor of the Principles and tion claims for violations of international hu- Guidelines.43 Only the German government manitarian law might be regrettable, it must explained its vote, but given the earlier U.S. be taken into account. His delegation had opposition to including humanitarian law in repeatedly raised those concerns, which had the draft, it is probably fair to assume that compelled it to abstain from voting.44 its abstention was at least in part based on objections similar to those raised by Ger- The text of the Basic Principles and Guide- many. According to the German government lines, which was approved by the U.N. Gen- representative: eral Assembly, asserts that it does not create any new substantive international or domes- His delegation . . . deeply regretted having tic legal obligations, but instead concerns been unable to support the “Basic principles implementing existing legal obligations. and guidelines” as included in the annex Oddly, the report of the High Commis- to resolution E/CN.4/2005/L.48. The text sioner for Human Rights noted that “shall” was an inaccurate reflection of customary was used in cases where a binding interna- international law. It erroneously sought to tional norm is in effect; otherwise the term apply the principles of State responsibility to “should” was used. 45 In fact, liberal use of relationships between States and individu- “should” in reference to existing obligations
41) Commission resolution 2003/34. appropriate and proportional to the violation and the circumstances of each case, be provided with 42) Commission resolution 2004/34. full and effective reparation . . . which include T
the following forms: restitution, compensation, r o t
43) Those abstaining were: Australia, Egypt, Erit- rehabilitation and satisfaction and guarantees of e r u non-repetition.” The following paragraph contains rea, Ethiopia, Germany, India, Mauritania, Nepal, 2007 2, Number 17, Volume Qatar, Saudi Arabia, Sudan, Togo, and the United a definition of restitution that is by no means in- States of America. novative, but which uses “should”: “Restitution should, whenever possible, restore the victim to 44) E/CN.4/2005/SR.57. the original situation before the violations . . . oc- curred.” The next paragraph says that “compen- 45) E/CN.4/2003/63 of 27 December 2002. sation should be provided for any economically assessable damage . . . .” All of these statements 46) Paragraph 18, for example, provide that vic- appear to restate existing law and could have used tims of gross violations of international human “shall.” rights and humanitarian law “should, as 106
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weakens the text and wrongly suggests that tive, prompt and appropriate. Action should the right to a remedy is not current law.46 be taken to prevent violations and to inves- The preamble calls for the establishment, tigate promptly, thoroughly and impartially strengthening and expansion of national those which occur. funds for compensation to victims and the The remaining sections of the Principles expeditious development of appropriate and Guidelines apply to specific sub-sets of rights and remedies for victims. It also asserts rights and obligations. Parts III and IV are that the Principles are victim-oriented and concerned with human rights and humani- directed at gross violations of international tarian law violations that constitute crimes human rights law and serious violations of under international law. They iterate the international humanitarian law “which, by duty of states to investigate and as appropri- their very grave nature, constitute an affront ate, if evidence so warrants, to submit to to human dignity.” Consistent with the refer- prosecution those alleged to have commit- ences to human dignity, the preamble recites ted crimes under international law. The text its rationale for ensuring a right to a remedy, favors international judicial assistance and stating that by so doing, “the international other forms of cooperation as well as the community keeps faith and human solidar- exercise of universal jurisdiction by states, ity with victims, survivors and future human where international law provides for it, and generations, and reaffirms the international without application of statutes of limitations. legal principles of accountability, justice and Most of the remainder of the Principles the rule of law.” The following paragraph re- and Guidelines (Parts V-X) concern gross fers to “compassion” for victims and solidar- violations of human rights law and serious ity with humanity at large. violations of international humanitarian law. The decision to limit the major part of They set forth the rights of access to justice the Principles and Guidelines to “gross” and and to substantive remedies. Part VII adds “serious” violations represents a compromise. a third component to remedial rights, the In fact there are three separate categories of “right to access to factual information and conduct referred to in the text: (1) obligations other relevant information concerning the arising with reference to all internationally violations.” The meaning and scope of “other guaranteed human rights and international relevant information” that is not factual is humanitarian law; (2) international crimes; unclear. and (3) “gross” violations of human rights The notion of “victim” can include a de- law and “serious” violations of humanitarian pendant or member of the immediate family law. or household of the direct victim, or anyone Parts I and II address the content and who is injured in intervening to assist a vic- scope of obligations to respect, ensure re- tim or prevent further violations. Part VI on spect for and enforce all international hu- treatment of victims makes clear that victims man rights and humanitarian law. These two should be treated with compassion and sections distinguish and emphasize the dual respect for their dignity and human rights, nature of remedial rights: access to justice, ensuring their safety and well-being and that on the one hand, and substantive remedies, of their families. on the other hand. Access to justice is re- Access to justice forms the contents of Volume 17, Number 2, 2007
u r e quired to be “fair, effective and prompt.” Part VIII. Victims “shall” have equal access t o r
T Reparations should also be adequate, effec- to an effective judicial remedy, although 107
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administrative or other remedies may be eral respects. First, cessation of the breach provided in accordance with domestic or is included among forms of satisfaction in international law. Access to justice “should” the Principles and Guidelines, whereas the include all available and appropriate interna- ILC convincingly places it as an obligation tional processes in which a person may have prior to and independent of reparation. legal standing. Despite its use of “shall”, Cessation is not part of reparation, but is the requirement of a judicial remedy goes part of the general obligation to conform to further than the law contained in many hu- the norms of international law; it not a right man rights instruments, which call for an of the victim capable of being waived. independent and impartial process that may The various forms of reparation fol- be non-judicial in nature.47 To make access low the traditional categories found in the to justice effective, states “should”, inter ILC Articles: restitution, compensation, sat- alia, disseminate information about available isfaction and guarantees of non-repeti- remedies, take measures to protect victims tion. The Principles and Guidelines also and witnesses and “facilitate assistance” to add rehabilitation, something not in the ILC victims. The latter term may suggest or refer Articles. Restitution “should, whenever pos- to financial aid to indigent victims, but this sible” restore the victim to a pre-violation is not made explicit in the text or commen- status. Efforts to strengthen the language tary. by using “shall” apparently ran into govern- Part IX which details the forms of repar- ment objections during the consultations. ation and other appropriate remedies con- The paragraph on compensation reiterates tinues to shift between “shall” and “should.” that the compensation provided should be Part IX affirms that reparation “is intended “proportional to the violation” which allows to promote justice” by redressing injury and the egregiousness of the act to be consid- thus should be proportional to the gravity ered in evaluating moral damages, while not of the violations or the harm suffered. The suggesting that punitive damage awards are inclusion of these two elements (scope of the appropriate. The Principles and Guidelines injury and magnitude of the misconduct) as quite rightly include expenses for legal and tests for the nature and range of reparations medical assistance within the recoverable give more flexibility to the decision-maker in costs, as they are directly attributable to the affording redress than if either factor alone wrong done. were the basis for judgment. Non-monetary remedies, apart from The Principles and Guidelines diverge rehabilitation, are included as forms of sat- from the reparations provisions of the recent isfaction. While the ILC Articles disfavor T
ILC Articles on State Responsibility in sev- satisfaction, they have been important in r o t e r u Volume 17, Number 2, 2007 2, Number 17, Volume
47) Article 2(3)(b) of the ICCPR, for example, provides for remedies to be assured “through the provides that each state party undertakes to en- competent national tribunals and other State in- sure that any person claiming a remedy for guar- stitutions.” It is not apparent that remedies for anteed rights shall have the issue of reparations gross and systematic violations require greater ju- determined “by a competent judicial, adminis- dicial supervision that do remedies for individual trative or legislative authorit[y], or by any other violations; indeed, an argument can be made that competent authority provided for by the legal sys- the former require policy decisions and allocations tem of the State, and to develop the possibilities of resources that may be better dealt with through of judicial remedy.” Article 6 of CERD similarly other procedures. 108
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48) The ICJ refused to indicate any guarantees of guay) (torture and detention); Case No. 110/1981 non-repetition in its judgments concerning US (Antonio Viana Acosta v. Uruguay) U.N. GAOR, failure to comply with the Vienna Convention on Hum. Rts. Comm., 39th Sess., Supp. No. 40, at Consular Relations, despite actions brought by 169, U.N. Doc A/39/40 (1984) (torture). several states asserting multiple violations of the Convention. See LaGrand (Ger. v. US); Avena 52) Cases Bleier, Barbato, Quintero, Baboeram, Her- and Others (Mex. v. U.S.). rera supra n. 33; Case No. 80/1980 (Elena Beatriz Vasilskis v. Uruguay) U.N. GAOR, Hum. Rts. 49) Comm. No. 30/1978 (Irene Bleier Lewenhoff Comm., 38th Sess., Supp. No. 40 at 173, U.N. and Rosa Valino de Bleier v. Uruguay) U.N.UAOR, Doc A/38/40 (1983) (torture); Case No. 88/1981 37th Sess. Supp., No. 40, at 130, U.N. Doc. (Gustavo Raul Larrosa Bequio v. Uruguay) U.N., A/37/40 (1982) (deprivation of the right to life); GAOR, Hum. Rts. Comm., 38th Sess., Supp. No. Comm. No. 84/1981 (Guillermo Ignacio Dermit 40 at 173, U.N. Doc A/38/40 (1983) (torture), Barbato and Hugo Harold Dermit Barbato v. Uru- Muteba, Penarrieta, supra n. 33. guay) U.N. GAOR , 38th Sess., Supp. No. 40 at 124, U.N. Doc. A/38/40 (1983) (deprivation of 53) Cases Bleier, Barbato, Quintero, Baboeram, Her- the right to life); Comm. No. 107/1981 (Elena rera supra n. 33; Case No. 80/1980 (Elena Beatriz Quinteros Almeida and Maria del Carmen Almeida Vasilskis v. Uruguay) U.N. GAOR, Hum. Rts. de Quinteros v. Uruguay) (disappearance) U.N. Comm., 38th Sess., Supp. No. 40 at 173, U.N. GAOR, Hum.Rts. Comm., 38th Sess., Supp. No. Doc A/38/40 (1983) (torture); Case No. 88/1981 40 at 216, U.N. Doc. A/38/40 (1983); Comm. No. (Gustavo Raul Larrosa Bequio v. Uruguay) U.N., 146/1983 and 148–154/1983 (John Khemraadi GAOR, Hum. Rts. Comm., 38th Sess., Supp. No. Baboeram et al. v. Suriname) U.N. GAOR, 40th 40 at 173, U.N. Doc A/38/40 (1983) (torture), Sess., Supp. No. 40 at 187 U.N. Doc. A/40/40 Muteba, Penarrieta, supra n. 24; Comm. No. (1985) (deprivation of the right to life); Comm 965/2000 (Karakurt v. Austria) (modify the appli- No. 161/1983 (Joaquin David Herrera Rubio v. Co- cable law to eliminate discrimination). lumbia) (disappearance and death) U.N. GAOR, Hum. Rts. Comm., 43rd Sess., Supp. No. 40, 54) Comm. No. 577/1994 (Polay Campos v. Peru), at 190, U.N. Doc. A/43/40 (1988); Comm. No. UN Doc A/53/40, Vol. II, 36, para. 10 (denial of a 194/1985 (Jean Miango Muigo v. Zaire) U.N. fair trial requires release of the applicant); Comm. GAOR, Hum. Rts. Comm., 43rd Sess., Supp. No. 788/1997 (Cagas et al. v the Philippines), UN No. 40, at 218, U.N. Doc. A/43/40 (1988) (right Doc. A/57/40, Vol I, 116 (where authors had been to life); Comm. No. 181/1984 (A. and H. San- detained for more than nine years without trial, juan Arevalo v. Columbia) (disappearances) U.N. either try them promptly or release them). GAOR, Hum. Rts. Comm., 45th Sess., Supp. No. 40, at 31 (Vol. 1), U.N. Doc A/45/40 (1990); 55) Comm. 641/1995 (Gedumbe v. Congo), UN Comm. No. 25/1978 (Carmen Amendola and Doc. A/57/40, Vol. 1I, 24, para. 6.2 (the author is Graciela Baritussio v. Uruguay) U.N. GAOR, entitled to reinstatement to public service and to Hum. Rts. Comm., 37th Sess., Supp. No. 40 at his post, with all the consequences that this im- 187, U.N. Doc A/37/40 (1982) (torture); Comm. plies, or, if necessary to a similar post, with arrear- No. 124/1982 (Tshitenge Muteba v. Zaire) U.N. ages in salary); an identical remedy was awarded GAOR, Hum. Rts. Comm., 39th Sess., Supp. No. in Comm. No. 906/2000, (Chira Vargas v. Peru), 40 at 182, U.N. Doc A/39/40 (1984) (torture); Views of 22 July 2002, id at 228. The Committee Comm No. 176/1984 (Walter Lafuente Penarrieta also called for measures to ensure that similar vio- et al. v. Bolivia) U.N. GAOR, Hum. Rts. Comm., lations do not recur in the future. 43rd Sess., Supp. No. 40, at 199, U.N. Doc A/43/40 (1988). 56) Comm. 747/1997 (Des Fours Walderode v. the Czech Republic), Views of 30 October 2001, UN 50) Cases Bleier, Barbato, Quintero, Baboeram, Mi- Doc A/57/40, Vol II, 88, para. 95; Comm. No. ango, Muteba, supra n. 33. 774/1997 (Brok v. Czech Republic), Views of 31 October 2001, UN Doc. A/57/40, Vol. II, 110, 51) Cases Bleier, Barbato, Muteba, Quinteros, Babo- para. 9 (restitution required for discrimination in eram, Miango and Penarrieta, supra n. 33; Case property restitution). 45/1979 (Suarez de Guerrero v. Colombia) (killing by deliberate police action) U.N. GAOR, Hum. Volume 17, Number 2, 2007 Rts. Comm., 37th Sess., Supp. No. 40, at 137, u r e t U.N. Doc A/37/40 (1982); Case No. 25/1978 o r
T (Carmen Amendola and Graciela Baritoussio v. Uru- 109
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the human rights field where the disparity On the procedural side, the attributes of of power between the state and individuals an effective remedy include the institutional whose rights are violated make the state’s independence of the remedial body from the role in disclosure of the violations and the authority responsible for the violation, the reasons for them particularly important. ability to invoke the guaranteed right, pro- Satisfaction thus includes truth-telling, re- cedural fairness, the capability of the remed- covery and reburial of victims’ remains, ac- ial body to afford redress, and effectiveness tions to restore victims’ reputation, apology in fact. As seen above, some international and commemorations. It also may include agreements explicitly call for the develop- judicial and administrative sanctions against ment of judicial remedies for the rights they those responsible, although the draft is clear guarantee, although effective remedies also that the duty to prosecute only applies to may be supplied by non-judicial bodies. crimes and not to all human rights viola- On the substantive side, the jurispru- tions. dence of the UN Human Rights Committee Guarantees of non-repetition, like sat- to date has specified one or more of the fol- isfaction, are seen as largely inappropriate lowing remedies for violations of the at the inter-state level,48 but they are very Covenant: important in human rights cases. The spe- cific measures recommended in the draft (a) public investigation to establish the mainly comprise strengthening of national facts49 institutions under the rule of law, including (b) bringing to justice the perpetrators50 independence of the judiciary and civilian (c) compensation51 control of the military and security forces. (d) ensuring non-repetition of the violation52 Final provisions recall the duty of non- (e) amending the law53 discrimination and the due process rights of (f) providing restitution of liberty,54 employ- any accused person. ment55 or property56 (g) providing medical care and treatment57 4. The content of remedial rights (h) permitting the victim to leave the and duties country58 Comparing the texts that have emerged and (i) enjoining an imminent violation.59 international practice affords a glimpse into the key legal issues, underlying aims, prior- Guarantees of non-repetition are an impor- ities, and assumptions linked to norms on tant aspect of the Committee’s approach reparations. It is clearly accepted that the to remedies. It frequently calls upon states T right to a remedy comprises two aspects, on parties to take steps to ensure that similar r o t the one hand, the procedural right of access violations do not occur in the future. It also e r u to justice and, on the other hand, the sub- has stressed repeatedly that states parties are 2007 2, Number 17, Volume stantive right to redress for injury suffered under an obligation to take immediate steps because of an act or acts committed in viola- to ensure strict observance of the provisions tion of rights contained in national or inter- of the Covenant.60 In the J.D. Herrera Rubio national law. Invoking the right of access to case, the Committee concluded that Colom- justice, victims have pressed claims in domes- bia had not taken the measures needed to tic and international tribunals, both of which prevent the disappearance and death of the increasingly face claims for reparations. parents of the author of the communication, 110
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had failed to adequately investigate, and that O.R., M.M. and M.S. v. Argentina, the Com- accordingly it had the duty to adopt effec- mittee found the cases inadmissible because tive measures of reparations, proceed with they related to events prior to the entry into the investigations, and take measures to force of the Convention for the state. The ensure that similar violations did not occur Committee nonetheless expressed its view in the future.61 Similarly, in Frances et al v. that the national “Full Stop Law” and “Law Trinidad and Tobago,62 the Committee, call- of Due Obedience” (the second adopted ing the conditions of detention “deplorable,” after ratification of the Convention) were held that the state was under an obligation “incompatible with the spirit and purpose” to improve the conditions of detention in its of the Convention against Torture, but the prisons without delay in order to bring them Committee observed that it could not fail into line with Article 10 of the Covenant. to indicate that “even before the entry into The focus of the Committee against force of the Convention against Torture, Torture has largely been on rehabilitation of there was a general rule of international law torture survivors. It recommended to the that obliged all States to take effective meas- government Zambia that it establish reha- ures to prevent torture and to punish acts of bilitation centers and called on the govern- torture”. The state was encouraged to adopt ment of Indonesia to “take immediate steps “appropriate measures” of reparation.64 to address the urgent need for rehabilitation The case law of regional human rights of the large number of victims of torture and bodies is insistent on the obligation of states ill treatment in the country.”63 On individual to provide broad and effective remedies on complaints, the Committee has recognized behalf of both direct and indirect victims. that a breach of the Convention requires the The European Court, for example, has made state to take remedial measures, including clear that failure to investigate and account guarantees of non-repetition. In the case of for the disappearance of an individual con-
57) Comm. No. 63/1979 (Raul Sendic Antonaccio from removing the authors from Australia before v. Uruguay) (cruel, inhuman or degrading treat- they have had an opportunity to have their appli- ment or punishment); Comm. 684/1996, (Saha- cation for parent visas examined with due consid- dath v. Trinidad and Tobago), Views of 2 April 2002, eration given to the protection required by Barry UN Doc A/57/40 Vol II, 66, para. 9 (the state Winata’s status as a minor.”) party is under an obligation to provide appropri- ate medical and psychiatric care and improve the 60) Comm. No. 63/1979 (Raul Sendic Antonaccio conditions of detention). v. Uruguay) (cruel, inhuman or degrading treat- ment or punishment). 58) Comm. No. 52/1979 (Sergio Ruben Lopez Bur- gos v. Uruguay), I Selected Decisions 88, para 14 61) CCPR, views of 2 November 1987, ICCPR, (“the State party is under an obligation, pursuant Selected Decisions of the Human Rights Com- to article 2(3) of the Covenant, to provide effec- mittee under the Optional Protocol, vol. II, 1990, tive remedies to Lopez Burgos, including immedi- 194–95. ate release, permission to leave Uruguay and com- pensation for the violations which he has suffered, 62) Case 899/1999, Frances et al v. Trinidad and and to take steps to ensure that similar violations Tobago, Views of 25 July 2002, UN Doc. A/57/40, do not occur in the future.”) Vol. II, 211, para. 7.
59) Comm. No. 930/2000 (Hendrick Winata et 63) CAT/C/SSVII/Concl., 23 Nov. 2001 (Zam- Volume 17, Number 2, 2007 al. v. Australia), UN doc. A/56/40, 199, para. 9 bia); CAT/C/XXVII/Concl. 2, 22 Nov. 2001 (In- u r e t (wrongful threatened deportation of foreign par- donesia). o r
T ents of a naturalized child requires “refraining 111
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stitutes a violation of the rights of remaining on any of these points violates both Article 3 family members under Convention Article 3, and Article 13. which prohibits torture and cruel, inhuman The Inter-American Court has perhaps and degrading treatment. In Kurt v. Turkey, best summed up the requirements of interna- judgment of 25 May 1998, the Court held tional human rights law to afford full repara- that the failure to account for her son was a tions. It has held that the obligation of repara- violation of the applicant mother’s right to tion constitutes a rule of customary law that be free from torture and her right to a rem- enshrines one of the fundamental principles edy under Article 13. The Court was clear of contemporary international law on state that Article 13 imposes an obligation on the responsibility.65 Thus, when an illicit act is state to conduct for the benefit of relatives imputed to the state, there immediately arises a thorough and effective investigation into state responsibility for the breach of the in- the disappearance of a person in government ternational norm involved, together with the custody, capable of leading to the identifica- subsequent duty to make reparations and put tion and punishment of those responsible an end to the consequences of the violation. and with effective access for the relatives The reparation of harm caused by the viola- (para. 140). tion requires, whenever possible, full restitu- In Aksoy v. Turkey the Court similarly tion (restitutio in integrum), which consists in established the link between the prohibition restoring the situation that existed before the of torture in Article 3 and the Article 13 violation occurred. When this is not possible, requirement of a remedy. According to the the state should adopt a series of measures Court, the fundamental importance of the (which the Court can order in cases before it) ban on torture means that Article 13 im- that, in addition to guaranteeing respect for poses, without prejudice to any other domes- the rights violated, will ensure that the dam- tic remedy, “an obligation on states to carry age resulting from the infractions is repaired, out a thorough and effective investigation of by way, inter alia, of payment of an indemnity incidents of torture.” This duty arises when- as compensation for the harm caused. All ever an individual has an “arguable claim” of aspects of reparations (scope, nature, modali- torture committed by state agents. It entails ties, and designation of beneficiaries) are gov- “in addition to the payment of compensation erned by international law. where appropriate, a thorough and effective The Inter-American Court has regularly investigation capable of leading to the iden- ordered the state before it to take specific ac- tification and punishment of those respon- tion to remedy a breach of the Convention, sible and including effective access for the as well as to pay compensation. The Court T individual to the investigatory procedure.” has ensured the effectiveness of the remedies r o t Thus, the substantive prohibitions of Article by setting up trust funds, appointing experts, e r u 3 are coupled with procedural duties that designing non-monetary remedies, and main- 2007 2, Number 17, Volume include investigation, prosecution, punish- taining cases open until the awarded remedies ment and redress. Failure of the state to act have been fully carried out.
64) Comms. 1/1988, 2/1988 and 3/1988, decision 65) Moiwana Village v. Suriname, (2005), 124 In- 23 Dec. 1989, U.N. Report of the Committee ter-Am.Ct.H.R. (ser.C) para. 169. against Torture, G.A.O.R. XLV Sess. 1990 at 111- 112. 112
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As the Court’s practice reflects and is are three kinds of compensatory damages: clear from the nature of human rights viola- nominal (a small sum of money awarded to tions, the payment of money is not the most symbolize the vindication of rights and make appropriate form of redress in many cases the judgment a matter of record); pecuniary and is usually inadequate unless coupled damages (intended to represent the closest with other measures. Some human rights possible financial equivalent of the monetary bodies have suggested that non-monetary loss or harm suffered); and moral damages remedies, i.e., those that require a state to (compensation for dignitary violations, in- take specified actions rather than pay com- cluding fear, humiliation, mental distress). pensation, are required to ensure adequate Compensatory damages generally provide redress. The state should provide measures for: of rehabilitation, including medical and psychological care, rehabilitation for any (1) past physical and mental suffering form of physical or mental damage, legal (2) future physical and mental suffering and social rehabilitation, guarantees of non- (3) medical expenses repetition, restoration of personal liberty, (4) loss of earnings and earning capacity family life, citizenship, employment or prop- (5) incidental out of pocket expenses, includ- erty, return to the place of residence, and ing e.g. travel, nursing care similar forms of restitution, satisfaction and (6) property injury or loss and reparation to remove the consequences of (7) permanent disability and disfigurement.70 the violation. Such actions can be useful not only in giving satisfaction to the victim, but The problem of calculating damages is in eliminating the cause of the violation and complex. A decision-maker considering the promoting respect for the human right that case of a person who suffers a permanent was violated. Common non-pecuniary repa- disability as a result of official torture71 can rations measures adopted include a public calculate the costs already incurred, such acknowledgment of the violation at official as past medical expenses, therapy charges, ceremonies;66 publication of the violation damage to property and lost earnings prior and remedies afforded in local media,67 an to judgment. Justice also demands, however, official apology by state officials,68 or other that the court consider lost future earnings public acts designed “to restore the victims’ and opportunities, and other losses which reputation and honor.”69 require prediction of future events, including Compensation, however inadequate, is loss in enjoyment of life. Reduced life ex- the most common form of reparation. There pectancy may be claimed, although national
66) Contreras San Martin Case, at para. 17; Carrillo 69) Carabantes Galleguillos Case, at para. 12, 14; Saldana Case, at para. 13. Contreras San Martin Case, at para. 14.
67) Livia Robles Case, at para. 13. See also Merci- 70) Berry v. City of Muskogee, 900 F.2d 1989 (10th adri de Morini Case, at para. 14. In Merciadri de Cir. 1990): “In an action involving death, appro- Morini, the state decreed amendments to national priate compensatory damages would include med- electoral legislation that reflected the state’s deci- ical and burial expenses, pain and suffering before sion in the petition before the Commission. death, loss of earnings based upon the probable Volume 17, Number 2, 2007 duration of the victim’s life had the injury not oc- u r e t 68) Contreras San Martin Case, at para. 14, 22-23. curred, the victim’s loss of consortium, and other o r
T damages recognized in common law tort actions”. 113
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jurisdictions are split on whether this is re- reasonable person would have paid to elimi- coverable.72 nate the risk that caused the injury.76 There are few developed principles for In practice, it seems clear that the award calculating awards of non-monetary injuries of moral damages is influenced by the gov- like pain and suffering, fright, nervousness, ernment’s conduct, but excessive amounts grief, anxiety, and indignity.73 While these will not be awarded in the nature of ag- injuries constitute recognized elements of gravated or punitive damages. The Inter- damages, they are particularly personal and American Court has said that the amount of therefore difficult to measure. There is no moral damages should be “based upon the objective test to measure the severity of a principles of equity” considering the “special victim’s pain, yet common human experi- circumstances of the case”.77 During one pe- ence recognizes the reality of physical and riod the Court awarded an identical amount emotional suffering.74 The inherently subjec- to each victim rather than individualizing the tive reaction to claims of pain and suffering award,78 setting the amount at US$20,000 can lead judges to award widely varying per victim. Given that the average monthly amounts for similar injuries. Some argue income in one case was estimated at that intangible injury is so difficult to as- US$125, the sum was significant, although sess that there should be a conventional, set it was considerably less than the moral dam- figure, perhaps calculated by unit of time.75 ages awarded in the Velasquez Rodriguez and Others claim that intangible harms like the Godinez Cruz cases. The state accepted re- loss of enjoyment of life are economic losses sponsibility in the former case, however, and that can be consistently calculated from an this was explicitly relied upon by the Court ex ante perspective that asks how much a as a factor in assessing moral damages.
71) See M. Brody, ‘Inflation, Productivity, and the 74) M. Geistfeld, ‘Placing a Price on Pain and Total Offset Method of Calculating Damages for Suffering: A Method for Helping Juries Deter- Lost Future Earnings,’ (1982) 49 U. Chi. L.Rev. mining Tort Damages for Nonmonetary Injuries,’ 1003. (1995) 83 Cal.L.Rev. 773.
72) See J. Fleming, ‘The Lost Years: A Problem 75) B.S. Markensinis, Tort Law (1994), 708. in the Computation and Distribution of Dam- ages,’ (1962) 50 Cql. L. Rev. 598. Mexico’s law 76) The dollar value of non-pecuniary loss is said implementing the United Nations Convention to equal the difference between what people are against Torture establishes the liability of persons willing to pay to avoid a particular risk or injury who commit any of the designated offences for or death and the solely financial component T the legal, medical, funeral, rehabilitation and other – medical expenses, lost earnings – associated r o t expenses incurred by the victim or relatives of the with that risk. Even someone fully insured against e r u victim. Federal Act for the Prevention and Pun- economic losses will pay for some safety measures 2007 2, Number 17, Volume ishment of Torture, Article 10. The law also calls and require a wage premium to run risks at work. for the offender to make good the damage for Such behaviour is said to show the economic loss of life, impairment of health, loss of freedom, value of non-economic losses. See T. Miller, ‘The loss of income, incapacity for work, loss of or Plausible Range for the Value of Life: Red Her- damage to property, and defamation of character. rings Among the Mackerel,’ (1990) 3 J. Forensic See Report to the United Nations on Human Rights Econ. 17. in Mexico, HRI/CORE/1/Add.12/Rev.1. 77) Velasquez Rodrigues Case (Reparations), supra 73) See M. Plant, ‘Damages for Pain and Suffer- n. 29, at para. 27; El Amparo Case, supra n. 29, at ing,’ (1958) 19 Ohio State L.J. 200. para. 37. 114
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In the 2003 decision in Myrna Mack ready been punished for those facts; and Chang v. Guatamala,79 however, the Inter- that the results of the investigations must American Court began shifting toward rec- be made known to the public, ognition that full reparation in some cases • that the State must remove all de facto involves not only compensation but punish- and legal obstacles and mechanisms that ment. The judgment found that the victim maintain impunity in the instant case, was deliberately murdered as a consequence provide sufficient security measures to of a military intelligence operation planned the judicial authorities, prosecutors, wit- and carefully prepared by the high command nesses, legal operators, and to the next of the Presidential General Staff. The victim of kin of Myrna Mack Chang, and resort was selected because of her work document- to all other means available to it so as to ing the abuse of indigenous communities in expedite the proceeding, Guatemala. The government covered up the • that the State must publish within three violation, obstructed the judicial investiga- months of notification of the judgment, tion and attacked the investigating police. at least once, in the official gazette Judges, prosecutors, attorneys, the next of “Diario Oficial” and in another national- kin and witnesses were subject to harass- circulation daily, the proven facts and ment and threats. The Court deemed that operative paragraphs of the judgment, the material before it established “aggravated • that the State must carry out a public act violations” and that rendering a judgment of acknowledgment of its responsibility would constitute a form of reparation and in connection with the facts of this case be “a way to avoid recidivism of facts such and of amends to the memory of Myrna as those suffered by Myrna Mack Chang Mack Chang and to her next of kin, in and her next of kin.” The Court found a pat- the presence of the highest authorities of tern of extra-legal executions fostered and the State, tolerated by the state and awarded a lengthy • that the State must publicly honor the list of non-monetary reparations as a con- memory of José Mérida Escobar, the sequence, in addition to compensation. The murdered police investigator, measures ordered were: • that the State must include, in the train- ing courses for members of the armed • that the State must effectively investigate forces and the police, as well as the the facts of the case, with the aim of security agencies, education regarding identifying, trying, and punishing all the human rights and international humani- direct perpetrators and accessories, and tarian law, all others responsible for the execution of • that the State must establish a scholar- Myrna Mack Chang, and for the cover- ship in the name of Myrna Mack Chang, up of the execution and other facts of the • that the State must name a well-known case, aside from the person who had al- street or square in Guatemala City after Myrna Mack Chang, and place a plaque in her memory where she died, or nearby, with reference to the activities she carried 78) El Amparo and Neira Alegria Cases, supra n. 29. out. Volume 17, Number 2, 2007 u r e
t 79) Judgment of Nov. 25, 2003, 101 Inter-Am.Ct. o r
T H.R. (Ser. C).
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In a concurring opinion, Judge Cancado- for the taxpayer and also a reduction in the Trindade adopted the notion of aggravated resources that should go towards social pro- responsibility, noting that the nature of the grams.” The views of these judges explain offense makes a link between reparations more fully what is implicit in the Court’s and combating impunity, with the former judgment. The idea of “aggravated” viola- then taking on elements of compensation tions is now accepted in the Inter-American and punishment. He saw exemplary or dis- Court and can be the avenue for various suasive reparations as consistent with the new forms of non-pecuniary remedies. idea of aggravated responsibility to ensure As the Myrna Mack Chang case exem- non-repetition of the offenses. He found plifies, international tribunals have been that this aspect of punitive damages is con- particularly concerned with the issue of sistent with the reparatory function of the impunity. The Inter-American Court’s deci- Court, but not in the sense of monetary sion in the Velásquez-Rodríguez case was the compensation (which he viewed as entail- first to go beyond the discussion of redress ing a risk of “commercialization of justice”). and articulate the state’s additional duty to Instead, the various forms of non-monetary prevent, investigate and punish serious hu- reparations could be seen as being both man rights violations. The judgment thus compensatory and punitive, because they established a mandatory interaction between sought to ensure non-repetition as well as criminal and civil remedies for certain seri- repair the harm caused. Thus, in his view, ous violations.80 Domestic norms and judi- punitive damages have long been awarded in cial practices that impede the investigation, the Inter-American system. This approach prosecution and punishment of the perpetra- probably claims too much, since some of the tors, should be annulled or repealed.81 measures are clearly intended as satisfaction, International tribunals have reiterated but to the extent that all guarantees of non- that the obligation to investigate, pros- repetition are intended to deter based on ecute and punish is not a mere formality past conduct, they could be seen as contain- and “must be complied with seriously.”82 ing an element of condemnation or punish- States may not “resort to measures such ment as well as reparation. Judge Sergio as amnesty, extinguishment and [others] Ramirez also rejected the idea of punitive designed to eliminate responsibility.”83 In damages in monetary terms because “it cor- the landmark Barrios Altos case, the Court responds more to the idea of a fine than held firmly that amnesty laws passed in rela- to that of the reparation of damage and, in tion to gross human rights violations do not any case, it would be payable by the Treas- comply with the dictates of the American T ury, which implies an additional burden Convention or international human rights r o t e r u Volume 17, Number 2, 2007 2, Number 17, Volume
80) Loayza Tamayo Case, Reparations, 11 Inter- 81) Case 11.771 (Catalan Lincoleo v. Chile), Inter- Am. C.H.R. (Ser. C), para. 129(d) (1998); El Ca- Am. C.H.R. 96, OEA/ser.L/V/II.111, doc. 20 rev. racazo Case, 95 Inter-Am. C.H.R. (Ser. C), para. (2001); Case 10.247, et al. (Extrajudicial Execu- 77 (2002); Castillo Páez Case, Reparations, 43 tions and Forced Disappearances), Inter-Am. C.H.R. Inter-Am. C.H.R. (Ser. C), para. 49 (1998); Gar- 253, OEA/ser.L/V/II.114, doc. 5 rev. (2001); Case rido and Baigorria Case, Reparations, 39 Inter-Am. 10.488 (Ellacuria, S.J., et al. v. El Salvador), Inter- C.H.R. (Ser. C), para. 42 (1998). Am. C.H.R.241, OEA/ser.L/V/II.106, doc. 6 rev. (1999).
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law generally.84 Such actions are incompat- of other rights. The international attention ible with the American Convention because to remedies reflects concern with uphold- “they are intended to prevent the investiga- ing and ensuring the effective enjoyment of tion and punishment of those responsible guaranteed rights. for serious human rights violations such as International human rights law and torture, extrajudicial, summary or arbitrary practice on remedies is evolving with the execution and forced disappearance, all of need to ensure the rule of law and promote them prohibited because they violate non- compliance by states with their human rights derogable rights recognized by international obligations. International tribunals are also human rights law.”85 increasingly concerned with reducing their growing caseloads by emphasizing remedies Conclusions at the national level. There is thus a new The right of victims of torture to receive emphasis on eliminating systemic viola- reparations is now widely acknowledged. tions through changes in domestic laws, in Given the general recognition of the right to additional to compensating the individual a remedy in law and practice, many consider applicant who brings a case to an interna- it to be a norm of customary international tional tribunal. International tribunals are law. Where states fail to provide the neces- promoting and using innovative and specific sary remedies for human rights violations, non-monetary remedies, including require- international institutions are the forum of ments that the government acknowledge its last resort. The authority of human rights responsibility and issue an apology, create a tribunals to afford remedies is uncontested. memorial to the victims, establish develop- Judicial bodies have inherent power to rem- ment or scholarship funds, build and oper- edy breaches of law in cases within their ate medical clinics and schools, and provide jurisdiction. In addition, human rights trea- medical treatment or other forms of rehab- ties sometimes confer explicit competence to ilitation. The notion of “aggravated viola- afford redress on the organs they create to tions” recognized in the Inter-American and hear cases. European Courts is also having an impact The ancient adage ubi jus, ibi remedium on the nature of remedies and the quantum (where there is a right there is a remedy) is of compensation. Each decision contributes reflected in the importance given in interna- to the growing jurisprudence to guide states tional human rights law to the existence of and assist in providing individualized justice effective remedies, which are seen as neces- to victims of human rights violations. sary in order to ensure the full enjoyment
82) Villagrán Morales et al. Case, at para. 100. See also Suárez Rosero Case, at para. 79 and 80.
83) El Caracazo Case, at para. 119.
84) See Barrios Altos Case, Judgment, 75 Inter- Am. C.H.R. (Ser. C), at para. 41- 44. Volume 17, Number 2, 2007 u r e t 85) Barrios Altos Case, Judgment,), para. 41 o r
T (2001).