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The right to individual reparations for systematic crimes. Legal basis, scope, enforcement

Studienarbeit 2016 38 Seiten

Jura - Strafrecht

Leseprobe

Table of Contents

Bibliography

List of Abbreviations

I. On the Importance of a Right to Reparations

II. The Notion of Reparations

III. Personal and Material Scope of Application
1. Scope Ratione Personae: Individual
2. Scope Ratione Materiae: Systematic Crimes

IV. Legal Basis
1. Historical Epitome
2. The Primacy of Fundamental Human Rights
3. Responsibility for Human Rights Violations
4. The Right to Individual Reparations
a) The Position under General International Law
b) International Human Rights Law
aa) Global Instruments
bb) Regional Instruments
cc) Individuality of Human Rights Provisions
c) International Humanitarian Law
d) International Criminal Law
e) UN Basic Principles on the Right to a Remedy

V. Content of Reparations
1. Ranking the Types of Reparations
2. Human Rights Tribunals
a) International
b) Regional
3. International Criminal Court

VI. Enforcement
1. International Human Rights Bodies
2. International Criminal Court
3. Administrative Programs / Mass Claims Procedures / Truth Commissions
a) Administrative Reparations Programs
b) Mass Claims Commissions
c) Truth Commissions

VII. Concluding Remarks

Bibliography

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List of Abbreviations

Abbildung in dieser Leseprobe nicht enthalten

“In honouring the victim’s 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 principles of accountability, justice and the rule of law.” [1]

I. On the Importance of a Right to Reparations

Throughout the past decades various states have emerged in processes of replacing pre–democratic political systems which have commissioned mass atrocities under an authoritarian rule.[2] These young nations – often lacking a coherent institutional architecture and financial resources – are confronted with the mammoth task of instating a functioning government and developing a rule of law.[3] Criminal prosecutions, lustration, truth commissions and a general notion of reconciliation – said “policies of coming to terms with the past”[4] (stemming from its German original Vergangenheitsbewältigung)[5] form the cornerstone of what is collectively described as transitional justice.[6]

The arguably most important duty of transitional democracies, however, is to identify victims and perpetrators of the previous regime and to provide adequate redress for individuals without jeopardizing the newly found peace and stability.[7] Much of the literary discussion has been criticized for poorly addressing the needs of victims and placing the issue of reparations on the sidelines.[8] Further, transitional justice programs often had the practical effect of subordinating the individual victims to the majority’s desire to ignore the past.[9] Several reparations initiatives have even been accused of re–victimizing the survivors or attempting to buy the victims’ silence.[10]

The aim of this paper is to contour a normative model of reparations in transitional societies – alternatively dubbed as reparatory justice –[11] and assess to what extent redress has become individualized and truly victim–oriented. It seeks to convey the vital demand associated with reparations: To restore the victim’s sense of dignity and moral worth and to remove his burden of disparagement often connoted with victimhood.[12] This will in turn aid in reintegrating the survivors into society, thus extoling their status as fully valued citizens.[13] As Magarrell, head of the International Center for Transitional Justice’s Reparations Unit,[14] has poignantly stated individual reparations “are important because (…) [they] underscore the value of each human being and their place as rights–holders”.[15]

I will assess to what extent international law as it stands today affords victims of systematic crimes a right to reparations, what such a right contains substantially and how it can be enforced. To do so, I will give a brief definition of the term reparations (II.) before establishing the personal and material scope of application (III.). Then I will turn to the legal bases in international law (IV.) and trace the developments in case–law from the international and regional level in order to outline the content of reparations (V.). Lastly, I will touch on methods of enforcing the right (VI.) and offer some concluding remarks on the subject (VII.).

II. The Notion of Reparations

The term reparation is defined by the Oxford English Dictionary as “the action of restoring something to a proper or former state; the action of making amends for a wrong loss, compensation”.[16] It generally refers to all means by which a state can mend the consequences of a breach of international law for which it is responsible.[17] Thus, reparations are the substantive redress afforded to victims as a consequence of human rights and humanitarian law violations.[18]

III. Personal and Material Scope of Application

Reparations are only due to certain persons and only under certain circumstances. Therefore, it is crucial to determine who is meant by an individual (1.) and what kinds of actions fall under the definition of systematic crimes (2.).

1. Scope Ratione Personae: Individual

The term individual as it is employed here seeks to describe those people whose rights or freedoms have been violated.[19] Premised on the understanding that each violation of a human right entails specific harm requiring individualized remedies as a consequence,[20] they are also understood to be victims.

Victims are defined by the UN Basic Principles on the Right to a Remedy (UNBPG) as:

“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”.[21]

It is these individuals that have the possibility to claim redress for sustained violations of their rights.

2. Scope Ratione Materiae: Systematic Crimes

The term systematic crimes describes violations of human rights guarantees that are commissioned by the pre–democratic regime against its own population, i.e. a state’s treatment of its own nationals.[22] It includes gross, substantial and severe violations of rights as they are protected in international human rights law and international humanitarian law.[23] Most often the terminology “gross and systematic violations of human rights” is employed.[24] This phrasing contains a quantitative and a qualitative element: “gross” violations are those deemed to be particularly serious because of their cruelty or depravity, whereas “systematic” suggests violations occurring under an official, widespread pattern or practice.[25] If a victim has sustained such violations, he or she can be deemed to qualify for reparations.

IV.Legal Basis

Now, having addressed the scope of applicability, focus will be given to the legal basis. This chapter will examine the position that individuals have acquired in international law with regard to the protection of their fundamental rights and identify the normative foundations of a right to individual reparations.

1. Historical Epitome

Traditional international law developed between states and thus has been predominantly dictated by their own interests.[26] As the Permanent Court of International Justice (PCIJ) proclaimed in its famous Lotus case: “International Law governs relations between independent [s]tates”.[27] Claims regarding individual compensation could only be submitted through inter–state complaints.[28] However, the advent of human rights law in the aftermath of the Second World War saw the application of instruments that attempted to define and codify standards for the protection of individuals.[29] Apart from recognizing the individual as a subject of international law, this affirmed his rights against the state.[30]

2. The Primacy of Fundamental Human Rights

Since then, human rights have increasingly gained further importance. The observance and promotion of human rights is of fundamental concern to the international legal order. The UN Charter (UNCh) identifies the universal protection of human rights as one of its principal objectives, pursuant to Arts. 1(3) and 55.[31] The subsequent Art. 56 UNCh obligates member states to take action for the achievement of said purposes. Consequently, a state that engages in a consistent pattern of violating internationally guaranteed human rights breaches this obligation.[32]

Moreover, detailed essential guarantees and freedoms are entrenched in instruments of human rights and humanitarian law.[33] The International Court of Justice (ICJ), principal judicial organ of the UN,[34] further conceptualized in its Barcelona Traction case that human rights obligations are of an erga omnes character.[35] Such obligations are owed to the international community as a whole and all states may act accordingly to ensure compliance.[36]

3. Responsibility for Human Rights Violations

If a state nonetheless contravenes human rights obligations by breaching a human rights treaty or a norm of customary international law, it incurs responsibility for the violation.[37] The state’s responsibility can be normatively ascribed to the 2001 International Law Commission’s (ILC) Draft Articles on State Responsibility (ASR)[38] which to great extents codify existing customary international law.[39] According to Art. 2 ASR, such liability may arise from the breach of an international obligation resulting from an act or omission. Importantly, Art. 33 ASR sets forth that the obligations may be owed to the international community as a whole, notwithstanding any right that might accrue directly to any person or entity other than a state. It is noteworthy that the official commentaries explicitly make reference to state responsibility extending to human rights violations and other breaches of international law for which the primary beneficiary of the obligation is not a state.[40]

Having explored the framework premising an individual right to reparations, namely state responsibility as a consequence to human rights violations, we now turn to look at provisions in concreto that grant such a right in international law.

4. The Right to Individual Reparations

a) The Position under General International Law

The idea that a state is liable to provide reparation for a breach of an international obligation was principally stated by the ICJ’s predecessor, the PCIJ, in the Factory at Chorzów case.[41] The court found it to be a principle of international law that “any breach of an engagement involves an obligation to make reparation in an adequate form” and referred to it as “the indispensable complement of a failure to apply a convention”.[42]

A tendency to affirm the victim’s position as ultimate beneficiaries of reparations can also be seen in the ICJ Wall Opinion of 2004, in which the court recognized the individuals’ right to receive compensation payments from Israel.[43] This development is backed by the official commentary to Art. 33 ASR. It provides that an obligation of reparation owed towards a state may ultimately be directed at the victims (in instances of human rights violations), making them the holders of the relevant rights.[44]

b) International Human Rights Law

aa) Global Instruments

Numerous instruments of human rights law establish legally–binding and quasi–judicial mechanisms to secure a right to reparations.[45] Their origin lies in Art. 8 of the Universal Declaration of Human Rights (UDHR), proclaiming that “[e]veryone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”.[46] Art. 2(3)(a) of the International Covenant on Civil and Political Rights (ICCPR) builds upon this provision, guaranteeing an effective remedy to anyone whose covenant rights have been violated.[47] The Human Rights Committee (HRC), the ICCPR treaty supervisory body, has made clear that reparations to individuals are required in order to discharge the state party’s obligation contained in Art. 2(3) ICCPR.[48]

Further appreciable provisions include Art. 6 CERD,[49] Art. 14 CAT,[50] Art. 39 CRC[51] and Art. 24(4) CPPED.[52] Notably, Art. 24(4) CPPED provides a definition of reparations in a binding instrument that reflects much of the contemporary jurisprudence of the IACtHR, as well as the UNBPG.[53] Accordingly, “victims (…) have the right to obtain reparation and prompt, fair and adequate compensation”.[54] All of these constitute a legal basis for claiming reparations.

bb) Regional Instruments

Several regional human rights systems have established designated tribunals to address claims made by alleged victims of human rights violations committed by a member state.[55] Reference should be made to Art. 13 of the European Convention on Human Rights (ECHR), which affirms the right to an effective remedy.[56] Art. 41 obliges the European Court of Human Rights (ECtHR) to afford just satisfaction if national law only allows for partial reparation to be made.[57]

In the Inter–American System, the right to an effective remedy is safeguarded in Art. 25 of the American Convention on Human Rights (ACHR). It is complemented by Art. 63 ACHR in regards to fair compensation,[58] both of which have been cited extensively in the jurisprudence of the IACtHR (vide infra).

Unlike the other instruments, the African System, precisely the African Charter on Human and Peoples’ Rights (ACHPR)[59] does not provide for individual complaints and the right to a remedy.[60] However, Art. 26(1) of the Additional Protocol empowers the African Court on Human and Peoples’ Rights (ACtHPR) to order payment of fair compensation or reparation.[61] Other newly emerging human rights systems contain similar provisions safeguarding the right to an effective remedy.[62] All of the cited provisions represent valid legal bases for individual reparations.

cc) Individuality of Human Rights Provisions

Some scholars have contested that human rights provisions confer direct rights towards individuals. Notably, Tomuschat takes a conservative stance with regards to the individuality of a right to reparations. Rather, he advocates a collective approach.[63] He maintains that provisions of human rights treaties would depend on the incorporation into national law in order to be effectuated. Moreover he argues that the principle of state immunity would bar the individual from making claims.[64]

In this context it should be noted that general international law sets forth the irrelevance of national law. Art. 27 of the Vienna Convention on the Law of Treaties (VCLT) clarifies that a state cannot invoke internal law for its failure to perform a treaty. Similarly, Art. 32 ASR does not allow a state to resort to internal law as justification for failure to comply with its obligations.[65] In this context Evans points out that the HRC and ECtHR commit states to ensure that their domestic legal system is in accordance with international human rights obligations.[66]

Further, the argument that only states could bring claims in lieu of their nationals does not bear any weight. As was elaborated above, individuals are to be regarded as ultimate beneficiaries and rights holders in cases of human rights violations. Reference can also be made to Art. 19 of the ILC Draft Articles on Diplomatic Protection, which prescribes that a state should hand over compensation to its own nationals if it should bring a claim under diplomatic protection.[67]

Buyse puts forward another convincing train of thought. He refers to an ICJ Advisory Opinion in which the UN, undoubtedly a subject of international law, was found to possess a right to claim reparation on the international plain from a state.[68] The individual, having been recognized as a subject in international law,[69] must therefore also be able to claim reparations.[70]

For these reasons, a right to reparations can be deemed to extend to the individuals’ gain.

c) International Humanitarian Law

Potential statutory sources foreseeing a right to reparation can also be found in instruments of international humanitarian law. Art. 3 of the 1907 Hague Convention (IV) expressly provides for the obligation to pay compensation as a result of violating the regulations contained therein.[71] It is literally reproduced by Art. 91 of Additional Protocol I to the Geneva Conventions pertaining to international armed conflicts, which imposes the same duty on any party that violates the Conventions or the Protocol.[72]

Some voices in the literary discussion interpret Art. 91 Additional Protocol I narrowly and do not infer an individual right from the provision. Tomuschat argues that Art. 91, albeit strengthening the position of individuals in international law, contains no indications of granting victims an enforceable right to compensation against the responsible state.[73] The official ICRC commentary of 1949 backs this presumption. It construes the provision according to general international law, noting that claims should be addressed through an intra–state mechanism.[74] Approaching the norm by genesis also proves no disparity. At the Geneva Conference, the article was approved without lengthy discussions and seen as a restatement of a rule of customary international law.[75]

It should, however, be questioned whether this construction is still feasible with regards to the developments in international law. The individual has overcome its mediation by the state and gained (partial) subjectivity, particularly in the field of human rights law. A person who deems his fundamental rights to be infringed can autonomously submit petitions to the supervisory organs of the respective human rights regime to claim redress. Moreover, certain violations of humanitarian law are coextensive with non–derogable human rights, for which a remedy undoubtedly exists (vide supra).[76] Considering that jurisprudence also asserts a complementarity/dual applicability of the rules of humanitarian and human rights law,[77] one could argue that Art. 91 favors a right of individuals.

Kalshoven supports such a broad interpretation with reference to the travaux preparatoires of the 1907 Hague Convention (IV). These demonstrate that the provision was aimed at creating a direct right for individuals.[78] According to Gattini, the establishment of the United Nations Compensation Commission (UNCC) by the Security Council (UNSC) in 1991 following the Iraq war is further proof of such a right.[79] By adopting its resolution on the UNBPG, the General Assembly can also be seen as having given an authoritative confirmation.[80] This interpretation coincides with the observations of the ICRC, affirming that the responsibility of the state to provide full reparation has acquired customary status applicable both in international and non–international armed conflicts.[81]

In sum, the arguments supporting an individual right prove to be more convincing. It is therefore reasonable to assume that both Art. 3 Hague Convention (IV) and Art. 91 Additional Protocol I confer a right to reparations for victims of humanitarian law violations.

d) International Criminal Law

Aside from constituting human rights violations, acts such as genocide, crimes against humanity and war crimes are also international crimes.[82] The statutes of the UN–mandated ad–hoc criminal tribunals, namely the International Criminal Tribunal for the former Yugoslavia and Rwanda (ICTY and ICTR respectively) allowed only for restitution as a punishment additional to imprisonment of the convicted, but did not foresee the express authorization to afford other victim reparations.[83]

The International Criminal Court (ICC), however, having jurisdiction to hear cases concerning the aforementioned crimes, is mandated with establishing principles relating to reparations, including restitution, compensation and rehabilitation (Art. 75(1) Rome Statute).[84] It may determine the scope and extent of any damage, loss and injury to, or in respect of, victims and direct the order of reparation straight against the convict.[85] Awards for reparations may be made through a specially created Trust Fund for Victims (TFV), pursuant to Arts. 75(2), 79 RS.[86] The Rome Statute thus provides for a suitable legal basis to afford reparations.

e) UN Basic Principles on the Right to a Remedy

The UNBPG, albeit legally non–binding,[87] outline various components regarding a right to a remedy and what form reparations should assume. The Principles underline the nexus between human rights and international humanitarian law, as explored above, and draw extensively from the ILC’s ASR.[88]

The UNBPG have been cited extensively in human rights jurisprudence[89] and are literally repeated in the legally–binding framework of the CPPED (Art. 24(4–5)), confirming that they reflect already settled norms in international law to a great extent.[90]

They emphasize the dual nature of remedial rights: on the one hand access to justice and on the other substantive remedies.[91] The procedural access to justice is required to be “fair, effective and prompt”.[92]

Pursuant to Part VIII, Principles 12, victims shall have equal and effective access to a judicial remedy, notwithstanding administrative or other remedies which may be provided by domestic or international law.[93] Such includes access to international proceedings as set forth by international law.[94] Part IX, Principles 15–23 then lay out what types of reparations shall be afforded. “Adequate, effective and prompt reparation” shall promote justice by redressing injury and therefore “should be proportional to the gravity of the violations or the harm suffered”.[95]

Throughout the rest of the paper, the guidelines will be consulted whenever appropriate to underline their cohesion with the practical application of reparations.

V. Content of Reparations

Having set out the legal basis of a right to individual reparations, we now turn to the substantive content. The Factory at Chorzów case provides us with a starting point: “Reparation must, as far as possible, wipe out all the consequences of the illegal act and re–establish the situation which would, in all probability, have existed if that act had not been committed”.[96] The UNBPG differentiate between several forms of reparations, namely restitution, compensation, rehabilitation, satisfaction and guarantees of non–repetition.[97] Whenever possible, restitution should restore the victim to the original situation before the violating act occurred (restitutio in integrum).[98]

Measures of restitution can be seen in the restoration of one’s liberty, the enjoyment of human rights, identity, family life and citizenship, the return to one’s place of residence, the restoration of employment and the return of property.[99]

Compensation should be provided for any economically assessable damage, proportional to the gravity of the violations and includes, inter alia, considerations for any physical or mental harm incurred, lost opportunities, material damages and loss of earnings, moral damage and costs for legal assistance or other medicinal/psychological services.[100]

In contrast hereto, rehabilitation encompasses the provision of medical and psychological care as well as legal and social services.[101]

Satisfaction is an extensive term that provides for the verification of facts, full and public disclosure of the truth, the search for the whereabouts of the disappeared and assisting in the recovery, identification and reburial of the bodies of those killed.[102] Moreover, it can include an official recognition of state responsibility, alongside public apologies and commemorations to the survivors.[103]

Lastly, guarantees of non–repetition seek to prevent further violations from occurring through institutional reforms, ensuring effective civilian control of military and security forces and providing human rights and international humanitarian law training for police and military personnel, among other things.[104]

1. Ranking the Types of Reparations

In theory, there exists a hierarchy of the modes of reparation.[105] Reparation should primarily be afforded by way of restitution and only if this is materially impossible or too burdensome for the state may compensation be paid.[106] Practically, however, restitution features to a lesser extent.[107] As Gray notes restitution may often be difficult or even impossible to achieve, in particular with the passage of time.[108] This applies even more so with regards to severe human rights violations. A pointed example can be seen in the judgment emitted by the ICJ in the Bosnia Genocide case, where it concluded that restitutio in integrum was not possible in relation to genocide.[109] Even if restitution remains a viable option it may not be adequate reparation for the damage incurred.[110] For instance, while victims of detainment or disappearance certainly need to be restored in their liberty and returned to their place of residence, they also require urgent rehabilitation such as psychological care to cure shock or trauma which they suffered during their ill–treatment. Therefore, a more dynamic approach should be adopted, concurrently applying several forms of reparation and having due regard to the victim’s needs.

To some extents, this already features in jurisprudence of human rights tribunals and the ICC. Albeit that the legal bases are worded differently at times, a trend towards a comprehensive understanding of reparations can be observed. This will be examined in the following, the focus being given to regional human rights jurisprudence.

[...]


[1] UNGA, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law, (21 March 2006), UN Doc. A/RES/60/147, preamble.

[2] Cf. Max Planck Institute for Foreign and International Criminal Law, Criminal Law in Reaction to State Crime (Research Project), https://www.mpicc.de/en/forschung/forschungsarbeit/strafrecht/state_crime.html, accessed 10 April 2016; Verdeja, Metaphilosophy 37 (2006), 449.

[3] Ibid; Shelton, 1, 24.

[4] Cf. supra n. 2.

[5] Tomuschat, 20.

[6] Verdeja, Metaphilosophy 37 (2006), 449.

[7] Ibid; cf. Maguire, Victimology: An Int’l J. 10 (1985), 539.

[8] Ibid; Shelton, 22; cf. Strang, 80.

[9] Shelton, 26.

[10] Ibid; International Center for Transitional Justice, Reparations, https://www.ictj.org/our-work/transitional-justice-issues/reparations, accessed 10 April 2016.

[11] Verdeja, Metaphilosophy 37 (2006), 449.

[12] Shelton, 23 ff.; Verdeja, Metaphilosophy 37 (2006), 450; cf. Becker et al., J. of Social Issues 40 (1990) 133, 147 f.; Haldemann, Cornell Int’l Law J. 41 (2008), 715 f.; Strang, 1.

[13] Ibid.

[14] The ICTJ is a non–profit organization dedicated to developing practices and assisting states with regards to transitional justice programs.

[15] Magarrell, International Center for Transitional Justice, “Reparations in Theory and Practice” (2007), http://ictj.org/sites/default/files/ICTJ-Global-Reparations-Practice-2007-English.pdf, accessed 10 April 2016, 1, 5; cf. Shelton, 18.

[16] Oxford English Dictionary, 457.

[17] Shelton, 16.

[18] Cf. Black’s Law Dictionary, 1085; UN Women and UNDP Report “Reparations, Development and Gender” (2012), http://www.unwomen.org/~/media/Headquarters/Attachments/Sections/Library/Publications/2012/10/06A-Development-Gender.pdf, accessed 10 April 2016, 4.

[19] Cf. Shelton, 15.

[20] Ibid.

[21] Supra n. 1, Principle 5.

[22] Shelton, 7; cf. Sohn, Am. U. L. Review 32 (1982), 1; Max Planck Institute for Foreign and International Criminal Law, Criminal Law in Reaction to State Crime (Research Project), https://www.mpicc.de/en/forschung/forschungsarbeit/strafrecht/state_crime.html, accessed 10 April 2016.

[23] Cf. supra n. 22.

[24] Shelton, 120.

[25] Ibid; cf. UN, Rome Statute of the International Criminal Court (17 July 1998), UN Doc. A/CONF. 183/9, 2187 UNTS 90, Art. 7.

[26] Cf. PCIJ, The Case of the S.S. Lotus (France v. Turkey), Judgment of 7 September 1927, Ser. A No. 10, 38.

[27] Ibid, 18.

[28] Cassese, 182 ff.; Crawford, 115 ff.; Shelton, 48 f.

[29] Cf. Shelton, 7, 63.

[30] Bassiouni, 6 HRLR 2 (2006), 203 f.

[31] UN, Charter of the United Nations (24 October 1945), 1 UNTS XVI, Arts. 1(3), 55.

[32] Shelton, 7.

[33] Evans, 19 f.

[34] Supra n. 32, Arts. 7(1), 92 UNCh; UN, Statute of the International Court of Justice (26 June 1945), 3 Bevans 1179, 59 Stat. 1031, Art. 1.

[35] ICJ, Barcelona Traction, Light and Power Company, Ltd. (Belgium v. Spain) (Second Phase), Judgment of 5 February 1970, Rep. 3, para. 33.

[36] Ibid; cf. ILC, Commentaries on the Draft Articles on Responsibility of States for Internationally Wrongful Acts, YBILC 2011, vol. II (Pt. 2), Art. 1, para. 4.

[37] Ibid, 58; cf. The Restatement (Third) of the Foreign Relations Law of the United States, s. 702.

[38] ILC, Draft Articles on the Responsibility of States for Internationally Wrongful Acts (3 August 2001), 53 UN GAOR Supp. (No. 10), UN Doc. A/56/10, 43; albeit non–binding, the UNGA has taken note of the Draft Articles in its resolution 56/83 and recommended them to the attention of governments.

[39] von Arnauld, para. 376.

[40] Supra n. 37, Art. 28, para. 3.

[41] Evans, 28.

[42] PCIJ, Factory at Chorzów (Germany v. Poland) (Jurisdiction), Judgment of 26 July 1927, Ser. A No. 9, 21.

[43] ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, Rep. 136, paras. 145, 152 f.

[44] Supra n. 37, Art. 33, para. 3.

[45] Evans, 33.

[46] UNGA Res. 217A (III), Universal Declaration of Human Rights (10 December 1948), UN Doc. A/810, Art. 8.

[47] UNGA Res. 2200A (XXI), International Covenant on Civil and Political Rights (16 December 1966), UN Doc. A/6316, 999 UNTS 171, Art. 2(3)(a).

[48] CCPR General Comment No. 31, The Nature of General Legal Obligation Imposed on State Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13, 2004, para. 16.

[49] UNGA Res. 2106 (XX), Convention on the Elimination of All Forms of Racial Discrimination (21 December 1965), UN Doc. A/9464, 660 UNTS 195, Art. 6.

[50] UNGA Res. 39/46, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (10 December 1984), UN Doc. A/39/51, 23 ILM 1027, Art. 14.

[51] UNGA Res. 44/25, Convention on the Rights of the Child (20 November 1989), UN Doc. A/44/49, 28 ILM 1448, Art. 39.

[52] UNGA Res. 61/177, International Convention for the Protection of All Persons from Enforced Disappearance (12 January 2007), 2716 UNTS 3, Art. 24(4).

[53] Shelton, 65.

[54] Supra n. 53.

[55] Shelton, 67.

[56] Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950), ETS 5, Art. 13.

[57] Ibid, Art. 41.

[58] OAS, American Convention on Human Rights (22 November 1969), OAS Doc. OEA/Ser.L/V/II.23, doc. 21 rev. 6 (1979), OASTS No. 36 at 1, Arts. 25, 63.

[59] OAU, African Charter on Human and Peoples’ Rights (27 June 1981), OAU Doc. CAB/LEG/67/3 rev. 5, 21 ILM 58.

[60] Cf. Evans, 36.

[61] OAU, Protocol to the African Charter on the Establishment of the African Court on Human and Peoples’ Rights (10 June 1998), OAU Doc. OAU/LEG/MIN/AFCHPR/PROT.1 rev. 2, Art. 26(1).

[62] Cf. LAS, Revised Arab Charter on Human Rights (2004), 12 Int’l Human Rights Rep. 893, Art. 23; ASEAN, Declaration on Human Rights (2013), available at http://www.asean.org/asean-human-rights-declaration/, Art. 5.

[63] Tomuschat, 293 ff.; see also Tomuschat, J. Int. Criminal Justice 3 (2005), 579 ff.

[64] Ibid.

[65] To this effect see Evans, 41.

[66] Ibid; supra n. 49, para. 13; Committee of Ministers of the Council of Europe, Monitoring of the Payment of Sums Awarded by Way of Just Satisfaction, 15 January 2009, para. 4.

[67] ILC, Draft Articles on Diplomatic Protection (2006), Art. 19; ILC, Commentaries on the Draft Articles on Diplomatic Protection (2006), GAOR 61st session, Supp. No. 10 (A/61/10), Art. 19, para. 8.

[68] ICJ, Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, Rep. 174, 184 f.

[69] Cassesse, 150.

[70] Buyse, ZaöRV 68 (2008), 134 f.

[71] International Conferences (The Hague), Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land (18 October 1907), 187 CTS 227, 1 Bevans 631, Art. 3.

[72] ICRC, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (8 June 1977), 1125 UNTS 3, Art. 91.

[73] Tomuschat, Tulane J. Int’l Comp’e L. 10 (2002), 179; see also Zegveld, Int’l Rev. Red Cross 85 (2003), 507.

[74] ICRC, Commentary on the Additional Protocols, Art. 91, paras. 3646, 3657.

[75] Cf. Hofmann, 140.

[76] To this effect see Provost, 49.

[77] ICJ, Armed Activities on the Territory of the Congo (D.R. Congo v. Uganda), Judgment of 19 December 2005, Rep. 168, para. 216; see also Report to the HRC of the OHCHR on the Outcome of the Expert Consultation on the Issue of Protecting the Human Rights of Civilians in Armed Conflict, UN Doc. A/HRC/11/31, 2 June 2009.

[78] Kalshoven, Int’l Comp’e L. Q., 830; see also Greenwood, 250.

[79] Gattini, EJIL 13 (2002), 166 f.

[80] Hofmann, 141; Mazzeschi, J. Int’l Criminal Justice 1 (2003), 342.

[81] Henckaerts and Doswald–Beck, Rule 150.

[82] Shelton, 83.

[83] Shelton, 168.

[84] Supra n. 26, Arts. 5(1), 75(1).

[85] Ibid, Art. 75(1–2).

[86] Ibid, Arts. 75(2), 79.

[87] The UNGA has, however, formally adopted them, see UNGA Res. 60/147 (16 December 2005).

[88] Cf. Evans, 37 f.

[89] Ibid.

[90] Antkowiak, Stanford J. Int’l L. 47 (2011), 286 f.; Evans, 6.

[91] Shelton, 75.

[92] Ibid.

[93] Supra n. 1, Principle 12.

[94] Ibid, Principle 14.

[95] Ibid, Principle 15.

[96] Evans, 47.

[97] Shelton, 16; supra n. 1, Principles 18–23. The ILC ASR also enumerate several components of reparation, cf. Arts. 30–37.

[98] Supra n. 1, Principle 19; cf. Art. 35 ASR.

[99] Supra n. 1, Principle 19.

[100] Ibid, Principle 20; cf. Art. 36 ASR.

[101] Supra n. 1, Principle 21.

[102] Ibid, Principle 22.

[103] Ibid; cf. Art. 37 ASR.

[104] Supra n. 1, Principle 23; cf. Art. 30 ASR.

[105] Cassesse, 259.

[106] Art. 35 ASR; cf. Evans, 48.

[107] Cf. Buyse, 132.

[108] Gray, 13 f.

[109] ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Merits), Judgment of 26 February 2007, Rep. 43, para. 460.

[110] Gray, 13 f.

Details

Seiten
38
Jahr
2016
ISBN (eBook)
9783668636699
ISBN (Buch)
9783668636705
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679 KB
Sprache
Englisch
Katalognummer
v391354
Institution / Hochschule
Humboldt-Universität zu Berlin – Lehrstuhl für deutsches und internationales Strafrecht, Strafprozessrecht und Juristische Zeitgeschichte
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16,00
Schlagworte
reparations transitional justice international criminal law systematic crimes

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Titel: The right to individual reparations for systematic crimes. Legal basis, scope, enforcement