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Sovereign Law Series

“Basic Principles and Guidelines on the
Right to a Remedy and Reparation for
Victims of Gross Violations of
International Human Rights Law” of 2005


Short-Form Reference:

2005 “Principles on Right to Remedy for Human Rights Violations”

In-Line Micro Reference:

2005 “Right to Remedy for Human Rights”

Ratification / Registration:

UN-GA Res. 60/147 (16 Dec 2005)


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Introductory Notes by the Independent Judiciary

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Introduction & Index

Independence from the UN – The United Nations (UN) is not a “world government”,
and has no authority for any type of “global governance”: The UN is prohibited to
interfere with self-determination of peoples or sovereignty of States (UN Charter,
Articles 1.2, 2.1, 2.7), and is liable for any of its own violations of international law and
rights (2012 Declaration on Rule of Law, Article 2). The UN is not a “world
parliament”, and has no authority to enact any form of “legislation”: The UN General
Assembly (GA) is only a forum for States to codify and declare general recognition of
rights and doctrines of international law (UN Charter, Article 13.1).

Reclaiming Law and Rights – The UN has no authority to “own” or “control”
international law: All the conventions actually belong to the Peoples of the Nations,
and the UN is only authorized to register and publish them (1969 Law of Treaties,
Articles 1(e), 76.1, 80; UN Charter, Article 102). Once a convention recognizes “rights”,
those “may not be revoked or modified” (1969 Law of Treaties, Articles 36.1, 37.2),
and “become binding upon” all States as “customary rules of international law” which
are “recognized” by that convention (Article 38). Therefore, all law and rights
evidenced in conventions belong to the People, and can be invoked by the People and
enforced by the Independent Judiciary, in perpetuity.

Words of Rights in Red – Operative words and phrases most effective for invoking and
enforcing Rights, which are the most used by Barristers and Judges, are printed in Red
font for ease of visual reference. Some key words may be underlined for emphasis.

Commentary in Green – [Expert commentary from Barristers and Judges may be
added in Green font, in Brackets, to guide effective use to assert and enforce rights.]



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Official Text of this Law Source as Ratified

Basic Principles and Guidelines on the Right to a Remedy and
Reparation for Victims of Gross Violations of International
Human Rights 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; Article 2 of the
International Covenant on Civil and Political Rights; 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;

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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;
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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:


PART I – Obligation to Respect, Ensure Respect for and Implement
International Human Rights Law and International Humanitarian Law

Article 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.

Article 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.
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PART II – Scope of the Obligation

Article 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.

PART III – Gross Violations of International Human Rights Law
and Serious Violations of International Humanitarian Law
that Constitute Crimes under International Law

Article 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.



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Article 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.

PART IV – Statutes of Limitations

Article 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.

Article 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.



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PART V – Victims of Gross Violations of International Human Rights Law
and Serious Violations of International Humanitarian Law

Article 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
dependents of the direct victim and persons who have suffered harm in intervening to
assist victims in distress or to prevent victimization.

Article 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.

PART VI – Treatment of victims

Article 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.



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PART VII – Victims’ Right to Remedies

Article 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.

PART VIII – Access to Justice

Article 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.

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Article 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.

Article 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.

PART IX – Reparation for Harm Suffered

Article 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.

Article 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.

Article 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.


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Article 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.

Article 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.

Article 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.

Article 21

Rehabilitation should include medical and psychological care as well as legal and social
services.



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Article 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.



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Article 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.




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PART X – Access to Relevant Information Concerning Violations
and Reparation Mechanisms

Article 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.

PART XI – Non-Discrimination

Article 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.



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PART XII – Non-Derogation

Article 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.

PART XIII – Rights of Others

Article 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.