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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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