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Adopted and proclaimed by General Assembly
resolution 60/147 of 16 December 2005
The General Assembly,
Guided by the Charter
of the United Nations, the Universal Declaration of Human
Rights, the International Covenants on Human Rights, other
relevant human rights instruments and the Vienna Declaration and
Programme of Action,
Affirming the
importance of addressing the question of remedies and reparation
for victims of gross violations of international human rights
law and serious violations of international humanitarian law in
a systematic and thorough way at the national and international
levels,
Recognizing that, in
honouring the victims’ right to benefit from remedies and
reparation, the international community keeps faith with the
plight of victims, survivors and future human generations and
reaffirms international law in the field,
Recalling the adoption
of 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 by the Commission on Human Rights in its
resolution 2005/35 of 19 April 2005 and by the Economic and
Social Council in its resolution 2005/30 of 25 July 2005, in
which the Council recommended to the General Assembly that it
adopt the Basic Principles and Guidelines,
1. Adopts 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 annexed to the present resolution;
2. Recommends that
States take the Basic Principles and Guidelines into account,
promote respect thereof and bring them to the attention of
members of the executive bodies of government, in particular law
enforcement officials and military and security forces,
legislative bodies, the judiciary, victims and their
representatives, human rights defenders and lawyers, the media
and the public in general;
3. Requests the
Secretary-General to take steps to ensure the widest possible
dissemination of the Basic Principles and Guidelines in all the
official languages of the United Nations, including by
transmitting them to Governments and intergovernmental and
non-governmental organizations and by including the Basic
Principles and Guidelines in the United Nations publication
entitled Human Rights: A Compilation of International
Instruments.
64th plenary
meeting
16 December 2005
Annex
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
Preamble
The General Assembly,
Recalling the
provisions providing a right to a remedy for victims of
violations of international human rights law found in numerous
international instruments, in particular article 8 of the
Universal Declaration of Human Rights, 1 article 2 of the
International Covenant on Civil and Political Rights, 2
article 6 of the International Convention on the Elimination of
All Forms of Racial Discrimination, article 14 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, and article 39 of the Convention on the Rights of
the Child, and of international humanitarian law as found in
article 3 of the Hague Convention respecting the Laws and
Customs of War on Land of 18 October 1907 (Convention IV),
article 91 of the Protocol Additional to the Geneva Conventions
of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I) of 8 June 1977, and
articles 68 and 75 of the Rome Statute of the International
Criminal Court,
Recalling the
provisions providing a right to a remedy for victims of
violations of international human rights found in regional
conventions, in particular article 7 of the African Charter on
Human and Peoples’ Rights, article 25 of the American Convention
on Human Rights, and article 13 of the Convention for the
Protection of Human Rights and Fundamental Freedoms,
Recalling the
Declaration of Basic Principles of Justice for Victims of Crime
and Abuse of Power emanating from the deliberations of the
Seventh United Nations Congress on the Prevention of Crime and
the Treatment of Offenders and General Assembly resolution 40/34
of 29 November 1985 by which the Assembly adopted the text
recommended by the Congress,
Reaffirming the
principles enunciated in the Declaration of Basic Principles of
Justice for Victims of Crime and Abuse of Power, including that
victims should be treated with compassion and respect for their
dignity, have their right to access to justice and redress
mechanisms fully respected, and that the establishment,
strengthening and expansion of national funds for compensation
to victims should be encouraged, together with the expeditious
development of appropriate rights and remedies for victims,
Noting that the Rome
Statute of the International Criminal Court requires the
establishment of “principles relating to reparations to, or in
respect of, victims, including restitution, compensation and
rehabilitation”, requires the Assembly of States Parties to
establish a trust fund for the benefit of victims of crimes
within the jurisdiction of the Court, and of the families of
such victims, and mandates the Court “to protect the safety,
physical and psychological well-being, dignity and privacy of
victims” and to permit the participation of victims at all
“stages of the proceedings determined to be appropriate by the
Court”,
Affirming that the
Basic Principles and Guidelines contained herein are directed at
gross violations of international human rights law and serious
violations of international humanitarian law which, by their
very grave nature, constitute an affront to human dignity,
Emphasizing that the
Basic Principles and Guidelines contained herein do not entail
new international or domestic legal obligations but identify
mechanisms, modalities, procedures and methods for the
implementation of existing legal obligations under international
human rights law and international humanitarian law which are
complementary though different as to their norms,
Recalling that
international law contains the obligation to prosecute
perpetrators of certain international crimes in accordance with
international obligations of States and the requirements of
national law or as provided for in the applicable statutes of
international judicial organs, and that the duty to prosecute
reinforces the international legal obligations to be carried out
in accordance with national legal requirements and procedures
and supports the concept of complementarity,
Noting that
contemporary forms of victimization, while essentially directed
against persons, may nevertheless also be directed against
groups of persons who are targeted collectively,
Recognizing that, in
honouring the victims’ right to benefit from remedies and
reparation, the international community keeps faith with the
plight of victims, survivors and future human generations and
reaffirms the international legal principles of accountability,
justice and the rule of law,
Convinced that, in
adopting a victim-oriented perspective, the international
community affirms its human solidarity with victims of
violations of international law, including violations of
international human rights law and international humanitarian
law, as well as with humanity at large, in accordance with the
following Basic Principles and Guidelines,
Adopts the
following Basic Principles and Guidelines:
I. Obligation to respect,
ensure respect for and implement international human rights law
and international humanitarian law
1. The obligation to respect,
ensure respect for and implement international human rights law
and international humanitarian law as provided for under the
respective bodies of law emanates from:
(a) Treaties to which
a State is a party;
(b) Customary
international law;
(c) The domestic law
of each State.
2. If they have not already
done so, States shall, as required under international law,
ensure that their domestic law is consistent with their
international legal obligations by:
(a) Incorporating
norms of international human rights law and international
humanitarian law into their domestic law, or otherwise
implementing them in their domestic legal system;
(b) Adopting
appropriate and effective legislative and administrative
procedures and other appropriate measures that provide fair,
effective and prompt access to justice;
(c) Making available
adequate, effective, prompt and appropriate remedies, including
reparation, as defined below;
(d) Ensuring that
their domestic law provides at least the same level of
protection for victims as that required by their international
obligations.
II. Scope of the obligation
3. The obligation to respect,
ensure respect for and implement international human rights law
and international humanitarian law as provided for under the
respective bodies of law, includes, inter alia, the duty to:
(a) Take appropriate
legislative and administrative and other appropriate measures to
prevent violations;
(b) Investigate
violations effectively, promptly, thoroughly and impartially
and, where appropriate, take action against those allegedly
responsible in accordance with domestic and international law;
(c) Provide those who
claim to be victims of a human rights or humanitarian law
violation with equal and effective access to justice, as
described below, irrespective of who may ultimately be the
bearer of responsibility for the violation; and
(d) Provide effective
remedies to victims, including reparation, as described below.
III. Gross violations of
international human rights law and serious violations
of international humanitarian law that constitute crimes
under international law
4. In cases of gross violations
of international human rights law and serious violations of
international humanitarian law constituting crimes under
international law, States have the duty to investigate and, if
there is sufficient evidence, the duty to submit to prosecution
the person allegedly responsible for the violations and, if
found guilty, the duty to punish her or him. Moreover, in these
cases, States should, in accordance with international law,
cooperate with one another and assist international judicial
organs competent in the investigation and prosecution of these
violations.
5. To that end, where so
provided in an applicable treaty or under other international
law obligations, States shall incorporate or otherwise implement
within their domestic law appropriate provisions for universal
jurisdiction. Moreover, where it is so provided for in an
applicable treaty or other international legal obligations,
States should facilitate extradition or surrender offenders to
other States and to appropriate international judicial bodies
and provide judicial assistance and other forms of cooperation
in the pursuit of international justice, including assistance
to, and protection of, victims and witnesses, consistent with
international human rights legal standards and subject to
international legal requirements such as those relating to the
prohibition of torture and other forms of cruel, inhuman or
degrading treatment or punishment.
IV. Statutes of limitations
6. Where so provided for in an
applicable treaty or contained in other international legal
obligations, statutes of limitations shall not apply to gross
violations of international human rights law and serious
violations of international humanitarian law which constitute
crimes under international law.
7. Domestic statutes of
limitations for other types of violations that do not constitute
crimes under international law, including those time limitations
applicable to civil claims and other procedures, should not be
unduly restrictive.
V. Victims of gross
violations of international human rights law and serious
violations of international humanitarian law
8. For purposes of the present
document, victims are persons who individually or collectively
suffered harm, including physical or mental injury, emotional
suffering, economic loss or substantial impairment of their
fundamental rights, through acts or omissions that constitute
gross violations of international human rights law, or serious
violations of international humanitarian law. Where appropriate,
and in accordance with domestic law, the term “victim” also
includes the immediate family or dependants of the direct victim
and persons who have suffered harm in intervening to assist
victims in distress or to prevent victimization.
9. A person shall be considered
a victim regardless of whether the perpetrator of the violation
is identified, apprehended, prosecuted, or convicted and
regardless of the familial relationship between the perpetrator
and the victim.
VI. Treatment of victims
10. Victims should be treated
with humanity and respect for their dignity and human rights,
and appropriate measures should be taken to ensure their safety,
physical and psychological well-being and privacy, as well as
those of their families. The State should ensure that its
domestic laws, to the extent possible, provide that a victim who
has suffered violence or trauma should benefit from special
consideration and care to avoid his or her re-traumatization in
the course of legal and administrative procedures designed to
provide justice and reparation.
VII. Victims’ right to
remedies
11. Remedies for gross
violations of international human rights law and serious
violations of international humanitarian law include the
victim’s right to the following as provided for under
international law:
(a) Equal and
effective access to justice;
(b) Adequate,
effective and prompt reparation for harm suffered;
(c) Access to relevant
information concerning violations and reparation mechanisms.
VIII. Access to justice
12. A victim of a gross
violation of international human rights law or of a serious
violation of international humanitarian law shall have equal
access to an effective judicial remedy as provided for under
international law. Other remedies available to the victim
include access to administrative and other bodies, as well as
mechanisms, modalities and proceedings conducted in accordance
with domestic law. Obligations arising under international law
to secure the right to access justice and fair and impartial
proceedings shall be reflected in domestic laws. To that end,
States should:
(a) Disseminate,
through public and private mechanisms, information about all
available remedies for gross violations of international human
rights law and serious violations of international humanitarian
law;
(b) Take measures to
minimize the inconvenience to victims and their representatives,
protect against unlawful interference with their privacy as
appropriate and ensure their safety from intimidation and
retaliation, as well as that of their families and witnesses,
before, during and after judicial, administrative, or other
proceedings that affect the interests of victims;
(c) Provide proper
assistance to victims seeking access to justice;
(d) Make available all
appropriate legal, diplomatic and consular means to ensure that
victims can exercise their rights to remedy for gross violations
of international human rights law or serious violations of
international humanitarian law.
13. In addition to individual
access to justice, States should endeavour to develop procedures
to allow groups of victims to present claims for reparation and
to receive reparation, as appropriate.
14. An adequate, effective and
prompt remedy for gross violations of international human rights
law or serious violations of international humanitarian law
should include all available and appropriate international
processes in which a person may have legal standing and should
be without prejudice to any other domestic remedies.
IX. Reparation for harm
suffered
15. Adequate, effective and
prompt reparation is intended to promote justice by redressing
gross violations of international human rights law or serious
violations of international humanitarian law. Reparation should
be proportional to the gravity of the violations and the harm
suffered. In accordance with its domestic laws and international
legal obligations, a State shall provide reparation to victims
for acts or omissions which can be attributed to the State and
constitute gross violations of international human rights law or
serious violations of international humanitarian law. In cases
where a person, a legal person, or other entity is found liable
for reparation to a victim, such party should provide reparation
to the victim or compensate the State if the State has already
provided reparation to the victim.
16. States should endeavour to
establish national programmes for reparation and other
assistance to victims in the event that the parties liable for
the harm suffered are unable or unwilling to meet their
obligations.
17. States shall, with respect
to claims by victims, enforce domestic judgements for reparation
against individuals or entities liable for the harm suffered and
endeavour to enforce valid foreign legal judgements for
reparation in accordance with domestic law and international
legal obligations. To that end, States should provide under
their domestic laws effective mechanisms for the enforcement of
reparation judgements.
18. In accordance with domestic
law and international law, and taking account of individual
circumstances, victims of gross violations of international
human rights law and serious violations of international
humanitarian law should, as appropriate and proportional to the
gravity of the violation and the circumstances of each case, be
provided with full and effective reparation, as laid out in
principles 19 to 23, which include the following forms:
restitution, compensation, rehabilitation, satisfaction and
guarantees of non-repetition.
19. Restitution
should, whenever possible, restore the victim to the original
situation before the gross violations of international human
rights law or serious violations of international humanitarian
law occurred. Restitution includes, as appropriate: restoration
of liberty, enjoyment of human rights, identity, family life and
citizenship, return to one’s place of residence, restoration of
employment and return of property.
20.
Compensation should be provided for any
economically assessable damage, as appropriate and proportional
to the gravity of the violation and the circumstances of each
case, resulting from gross violations of international human
rights law and serious violations of international humanitarian
law, such as:
(a) Physical or mental
harm;
(b) Lost
opportunities, including employment, education and social
benefits;
(c) Material damages
and loss of earnings, including loss of earning potential;
(d) Moral damage;
(e) Costs required for
legal or expert assistance, medicine and medical services, and
psychological and social services.
21.
Rehabilitation should include medical
and psychological care as well as legal and social services.
22.
Satisfaction should include, where applicable,
any or all of the following:
(a) Effective measures
aimed at the cessation of continuing violations;
(b) Verification of
the facts and full and public disclosure of the truth to the
extent that such disclosure does not cause further harm or
threaten the safety and interests of the victim, the victim’s
relatives, witnesses, or persons who have intervened to assist
the victim or prevent the occurrence of further violations;
(c) The search for the
whereabouts of the disappeared, for the identities of the
children abducted, and for the bodies of those killed, and
assistance in the recovery, identification and reburial of the
bodies in accordance with the expressed or presumed wish of the
victims, or the cultural practices of the families and
communities;
(d) An official
declaration or a judicial decision restoring the dignity, the
reputation and the rights of the victim and of persons closely
connected with the victim;
(e) Public apology,
including acknowledgement of the facts and acceptance of
responsibility;
(f) Judicial and
administrative sanctions against persons liable for the
violations;
(g) Commemorations and
tributes to the victims;
(h) Inclusion of an
accurate account of the violations that occurred in
international human rights law and international humanitarian
law training and in educational material at all levels.
23. Guarantees of
non-repetition should include, where applicable, any or all
of the following measures, which will also contribute to
prevention:
(a) Ensuring effective
civilian control of military and security forces;
(b) Ensuring that all
civilian and military proceedings abide by international
standards of due process, fairness and impartiality;
(c) Strengthening the
independence of the judiciary;
(d) Protecting persons
in the legal, medical and health-care professions, the media and
other related professions, and human rights defenders;
(e) Providing, on a
priority and continued basis, human rights and international
humanitarian law education to all sectors of society and
training for law enforcement officials as well as military and
security forces;
(f) Promoting the
observance of codes of conduct and ethical norms, in particular
international standards, by public servants, including law
enforcement, correctional, media, medical, psychological, social
service and military personnel, as well as by economic
enterprises;
(g) Promoting
mechanisms for preventing and monitoring social conflicts and
their resolution;
(h) Reviewing and
reforming laws contributing to or allowing gross violations of
international human rights law and serious violations of
international humanitarian law.
X. Access to relevant
information concerning violations and reparation mechanisms
24. States should develop means
of informing the general public and, in particular, victims of
gross violations of international human rights law and serious
violations of international humanitarian law of the rights and
remedies addressed by these Basic Principles and Guidelines and
of all available legal, medical, psychological, social,
administrative and all other services to which victims may have
a right of access. Moreover, victims and their representatives
should be entitled to seek and obtain information on the causes
leading to their victimization and on the causes and conditions
pertaining to the gross violations of international human rights
law and serious violations of international humanitarian law and
to learn the truth in regard to these violations.
XI. Non-discrimination
25. The application and
interpretation of these Basic Principles and Guidelines must be
consistent with international human rights law and international
humanitarian law and be without any discrimination of any kind
or on any ground, without exception.
XII. Non-derogation
26. Nothing in these Basic
Principles and Guidelines shall be construed as restricting or
derogating from any rights or obligations arising under domestic
and international law. In particular, it is understood that the
present Basic Principles and Guidelines are without prejudice to
the right to a remedy and reparation for victims of all
violations of international human rights law and international
humanitarian law. It is further understood that these Basic
Principles and Guidelines are without prejudice to special rules
of international law.
XIII. Rights of others
27. Nothing in this document is
to be construed as derogating from internationally or nationally
protected rights of others, in particular the right of an
accused person to benefit from applicable standards of due
process.
Resolution 217 A (III).
Resolution 2200 A (XXI),
annex.
A/CONF.157/24 (Part I),
chap. III.
See Official Records of
the Economic and Social Council, 2005, Supplement No. 3 and
corrigendum (E/2005/23 and Corr.1), chap. II, sect. A.
Resolution 2106 A (XX), annex.
United Nations, Treaty
Series, vol. 1465, No. 24841.
Ibid., vol. 1577, No. 27531.
See Carnegie Endowment for
International Peace,
The Hague Conventions and Declarations
of 1899 and 1907 (New York, Oxford University Press, 1915).
United Nations, Treaty
Series, vol. 1125, No. 17512.
Official Records of the
United Nations Diplomatic Conference of Plenipotentiaries on the
Establishment of an International Criminal Court,
Rome , 15 June– 17 July 1998 , vol. I: Final
documents (United Nations publication, Sales No. E.02.I.5),
sect. A.
United Nations, Treaty
Series, vol. 1520, No. 26363.
Ibid., vol. 1144, No. 17955.
Ibid., vol. 213, No. 2889.
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