UN General Assembly Resolution 60/147

UN General Assembly Resolution 60/147, 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, is a United Nations Resolution about the rights of victims of international crimes. It was adopted by the General Assembly on 16 December 2005 in its 60th session.[1] According to the preamble, the purpose of the Resolution is to assist victims and their representatives to remedial relief and to guide and encourage States in the implementation of public policies on reparations.

Not to be confused with United Nations Security Council Resolution 147.
UN General Assembly
Resolution 60/147
Date16 December 2005
CodeA/RES/60/147 (Document)
SubjectReparation for Victims of International Human Rights Violations
Voting summary
  • 40 voted for
  • None voted against
  • 12 abstained
Resultadopted

The principles were drafted by Dutch jurist Theo van Boven, who served as the UN's Special Rapporteur on the Right to Reparation to Victims of Gross Violations of Human Rights from 1986 to 1991, and were finalised after over 20 years of research. They have since been adopted by UN Member States. They are non-binding, however it has been recommended by the General Assembly that States take the Basic Principles and Guidelines into account.[2]

The Resolution consists of 27 principles outlining the obligation of all UN member states to respect and implement international human rights law and international humanitarian law. It is the first codification of the rights of victims of human rights violations to reparation and remedies, and to access justice within domestic legal systems.

Members of the United Nations Human Rights Council (UNHRC), 2007-2009

Description

The Basic Principles and Guidelines prescribe that victims of human rights abuses have a right to reparation. This right derives from the general principle of the law on State Responsibility that a wrongful act arising from a breach of an international obligation gives rise to an obligation to make reparation.[3] The recognition of a right to reparation extends from the duty of States to remedy wrongful acts under international law, an obligation codified in Article 34 of the Draft Articles on State Responsibility for Internationally Wrongful Acts(2001).

The Resolution combines the rights afforded under both international humanitarian law and international human rights law, and codifies the duty of States to implement domestic reparations for victims.[4] It addresses gross violations of international human rights law and serious violations of international humanitarian law that constitute crimes under international law. Its provisions concern the status and treatment of victims of such violations and their remedial rights under international law, including the right to receive reparation for harm suffered.[1] It also specifies statutes of limitations in relation to such violations, access to justice and access to relevant information concerning violations and reparation mechanisms.[5]

The Basic Principles and Guidelines are not intended to create new obligations. They are intended to serve as a tool/guiding instrument for States in implementing domestic policies.[1]

Background
61st sitting of the Human Rights Commission: Votes of UN Member States
For Against Abstain
  1. Argentina
  2. Armenia
  3. Bhutan
  4. Brazil
  5. Burkina Faso
  6. Canada
  7. China
  8. Congo
  9. Costa Rica
  10. Cuba
  11. Dominican Republic
  12. Ecuador
  13. Finland
  14. France
  15. Gabon
  16. Guatemala
  17. Guinea
  18. Honduras
  19. Hungary
  20. Indonesia
  21. Ireland
  22. Italy
  23. Japan
  24. Kenya
  25. Malaysia
  26. Mexico
  27. Netherlands
  28. Nigeria
  29. Pakistan
  30. Paraguay
  31. Peru
  32. Republic of Korea
  33. Romania
  34. Russian Federation
  35. South Africa
  36. Sri Lanka
  37. Swaziland
  38. Ukraine
  39. United Kingdom
  40. Zimbabwe
 None
  1. Australia
  2. Egypt
  3. Eritrea
  4. Germany
  5. India
  6. Mauritania
  7. Nepal
  8. Qatar
  9. Saudi Arabia
  10. Sudan
  11. Togo
  12. United States of America

The first draft of the Basic Principles and Guidelines was prepared by Theo van Boven in 1997, at the request by the Sub-Commission on the Prevention of Discrimination and Protection of Minorities.[6] After incorporating extensive feedback and further research, the 2000 Draft Principles and Guidelines[7] were presented to the Commission on Human Rights, and subsequently circulated to state governments as well as non-governmental organisations for comment.

On 31 August 2000, the basic principles and guidelines were open for comment, and the Secretary-General invited member states to submit feedback. Between 2000 and 2002, the document underwent further revision.[8]

In August 2003, an international consultation was held by the Office of the United Nations High Commissioner for Human Rights (OHCHR), at the request of the Commission on Human Rights, for the purpose of finalising the text.[9] A revised version was produced, which incorporated feedback from State governments and NGO’s, as well as expert and qualified publicized opinions.[10] Two subsequent consultative meetings were held in Geneva in October 2003.[11] The Chairman-Rapporteur of the meeting, Mr. Alejandro Salinas, produced a report[12] which the Commission on Human Rights received and welcomed.

On 19 April 2005, the Human Rights Commission passed Resolution 2005/35 during its 61st organisational session in New York, affirming the guidelines[13] and also recommending them for approval by the General Assembly.[14] Put before member states, the Resolution passed by a recorded vote of 40 in favour, with 12 abstentions and 0 voting against.[15]

Adoption

The Basic Principles and Guidelines were placed before the UN General Assembly in its 60th sitting. On 16 December 2005, the United Nations General Assembly adopted the Basic Principles and Guidelines as Resolution A/RES/60/147 (2005) by consensus.[16] The Basic Principles and Guidelines were officially published by the United Nations in 2006.

Victims under international law

The Resolution providing a comprehensive definition of victims, which combines existing definitions found in human rights instruments and jurisprudence. Principle 8 defines the term victim as including "persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights . . . also includes the immediate family or dependents of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization."[1]

The Resolution’s focus away from perpetrators and towards victims is part of a wider shift in international criminal jurisprudence towards the acceptance of the rights, obligations and responsibilities that are owed to individuals under international law.[17] This follows a general trend towards the recognition of the involvement of non-state actors in international law.[18]

Prior to recent developments, the focus of human rights law has been on holding perpetrators accountable, and victims have remained in the background. The creation of international criminal tribunals and the increase in ratifications of human rights instruments over recent decades have provided more comprehensive recognisition of victims under international law.[19] The creation of the International Criminal Court in 1998 under the Rome Statute increased the focus on victim perspectives. By establishing international criminal jurisdiction over the international crimes of genocide, crimes against humanity, war crimes and the crime of aggression, the Statute providing explicitly recognised the role of victims in international proceedings and defining their rights to reparation. The Basic Principles and Guidelines offered considerable guidance to the content of the Rome Statute in relation to recognising victims’ rights, despite being in the drafting process at the time.[20]

The right to reparation

The Basic Principles and Guidelines extend the rights afforded to victims by combining entitlements afforded under both human rights law and humanitarian law.[21] There is considerable overlap in the rights and protection afforded under these regimes, in areas such as the prohibition of discrimination on racial, gender and religious grounds and the right to a fair trial.[22] International legal bodies, including the International Court of Justice, have affirmed that the application of human rights law and humanitarian law can be dual and complementary. This was confirmed in the 2006 ICJ judgment of Armed Activities on the Territory of the Congo. [23] Many human rights theorists have argued that the distinction between different branches of international law is less relevant in determining redress of victims.[24]

The Resolution is the first international instrument to altogether articulate the remedies for human rights violations.[25] It clarifies the remedial rights of victims as comprising: (a) equal and effective access to justice;(b) adequate, effective and prompt reparation of harm suffered; (c) access to relevant information concerning violations and reparation mechanisms.[1]

While this right has been confirmed in international law, and human rights instruments have addressed the remedial rights of victims, the Basic Principles was the first document that articulated these rights in full.[26]

The Resolution prescribes that this can take five forms: restitution, compensation, rehabilitation, satisfaction, and the guarantee of non-repetition. This codifies the existing right to reparation which has been confirmed as an entitlement of customary international law.[27]

There has been considerable discussion over whether the right to reparation is one that accrues individually or collectively.[28] Some legal scholars have argued that the entitlement of victims to reparation is a collective right rather than an individual right, because it depends on the incorporation of human rights treaties into domestic legislation.[29] The classification of reparation as an individual right has also been rejected on the grounds that it is not unequivocal, due to the exceptions created by law on state immunity. The right to reparation is restricted by the limited legal personality of individuals under international law. For a victim to receive reparation under international law, a State must bring a claim on their behalf. Exercising this right also requires that the State give any received compensation to that injured national, which is not required under international law. Under Article 19 of the Draft Articles on Diplomatic Protection, this is a decision at their discretion.[30]

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gollark: Not in the general case.
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gollark: And they're truth cuboids.
gollark: I checked.

References
  1. United Nations. "Resolution adopted by the General Assembly on 16 December 2005". United Nations Audiovisual Library. Retrieved 16 May 2019.
  2. UN General Assembly Resolution 60/147, 16 December 2005, oper. para. 2.
  3. Articles on State Responsibility for Internationally Wrongful Acts, adopted by the ILC and submitted to the General Assembly under UN Doc A/56/10 (2001), Article 1
  4. Evans, Christine (2012). "The Right to Reparation in International Law for Victims of Armed Conflict" (PDF). Cambridge Studies in International and Comparative Law: 6. Retrieved 7 June 2019.
  5. Mayer-Rieckh, Alexander (2017). "Guarantees of Non-Recurrence: An Approximation". Human Rights Quarterly. 39 (2): 423–424. doi:10.1353/hrq.2017.0024.
  6. Draft Basic Principles and Guidelines on the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, 16 January 1997, E/CN.4/1998/43.
  7. Draft Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law, 18 January 2000, E/CN.4/2000/62, Annex (2000 Draft Principles and Guidelines).
  8. Bassiouni, M. Cherif (2006). "International Recognition of Victims' Rights". Human Rights Law Review 6. 2: 248 – via Oxford University Press Journals.
  9. United Nations. "GENERAL ASSEMBLY RESOLUTION 60/147" (PDF). United Nations Audiovisual Library. Retrieved 2019-05-25.
  10. Bassiouni, Cherif M. (2006). "International Recognition of Victims' Rights". Human Rights Law Review. 6:2: 249–250.
  11. Bassiouni, M. Cherif (2006). "International Recognition of Victims' Rights". Human Rights Law Review 6. 2: 250 – via Oxford University Press Journals.
  12. "ODS HOME PAGE" (PDF). documents-dds-ny.un.org. Retrieved 2019-05-21.
  13. "E/RES/2005/30". United Nations Digital Library. Retrieved 17 May 2019.
  14. Office of the High Commissioner for Human Rights (16 May 2019). "Human Rights Resolution 2005/35". Ref World.
  15. "Implementing victims' rights" (PDF). Retrieved 2020-02-27.
  16. "Resolution adopted by the General Assembly on 16 December 2005" (PDF). UN General Assembly documents. 2006. Retrieved 17 May 2019.
  17. Evans, Christine (2012). "The Right to Reparation in International Law for Victims of Armed Conflict" (PDF). Cambridge Studies in International and Comparative Law: 125. Retrieved 8 June 2019.
  18. Bassiouni, M. Cherif (2006). "International Recognition of Victims' Rights". Human Rights Law Review. 6 (2): 203–279. doi:10.1093/hrlr/ngl009.
  19. Evans, Christine (2012). "The Right to Reparation in International Law for Victims of Armed Conflict" (PDF). Cambridge Studies in International and Comparative Law: 125. Retrieved 8 June 2019.
  20. Evans, Christine (2012). "The Right to Reparation in International Law for Victims of Armed Conflict" (PDF). Cambridge Studies in International and Comparative Law. Retrieved 8 June 2019.
  21. Bassiouni, M. Cherif (2006). "International Recognition of Victims' Rights". Human Rights Law Review. 6 (2): 204–5. doi:10.1093/hrlr/ngl009.
  22. Ratner, S (1998). "The Schizophrenias of International Criminal Law". Texas International Law Journal. 33: 237–257.
  23. ICJ Judgments. "(DRC v Rwanda) [2006] ICJ Rep 6" (PDF).
  24. Van Boven, Theo (2006). Freshman; et al. (eds.). 'Victims' Rights to a Remedy and Reparation (PDF). Netherlands: Koninklijke Brill NV. pp. 19–40. Retrieved 8 June 2019.
  25. Evans, Christine (2012). "The Right to Reparation in International Law for Victims of Armed Conflict" (PDF). Cambridge Studies in International and Comparative Law: 38. Retrieved 8 June 2012.
  26. Bell, C (2000). Peace Agreements and Human Rights. Oxford University Press.
  27. Shelton, D (2005). Remedies in International Human Rights Law. Oxford University Press. p. 147.
  28. Evans, Christine. "The Right to Reparation in International Law for Victims of Armed Conflict" (PDF). Cambridge Studies in International and Comparative Law: 42. Retrieved 8 June 2019.
  29. Tomuschat, C (2008). Human Rights, Between Idealism and Realism. Oxford University Press. pp. 192–193.
  30. "ILC Draft Articles on Diplomatic Protection" (PDF).
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