Carla Ferstman
23
cial decisions. This obligation is also reflected in international humanitarian law treaties, nota
bly, in Article 3 of the Hague Convention IV,17 largely reproduced in Article 91 of Protocol I of the
Geneva Conventions.18 Declarative texts, such as the U.N.’s Basic Principles and Guidelines19 and the
International Law Association’s Declaration of International Law Principles on Reparation for Victims
of Armed Conflict,20 also consider reparation for international humanitarian law violations and
emphasise victims’ “right” to reparation.
In human rights law, reparations entails two aspects: the right to a domestic remedy and the
right to adequate and effective forms of reparation. The connection between the procedure by
which reparation is sought and the ultimate award is understood as indivisible. The U.N. Basic
Principles and Guidelines explain the obligation to respect, ensure respect for, and implement inter
national human rights law and international humanitarian law as giving rise to a duty, inter alia,
to “[p]rovide those who claim to be victims of a human rights or humanitarian law violation with
equal and effective access to justice . . . irrespective of who may ultimately be the bearer of respon
sibility for the violation.”21
The procedural remedy has been understood to require States to afford effective access to fair
processes in which arguable claims for reparations can be determined. Jurisprudence and stan
dard-setting texts also recognise the need to consider the quality of victims’ access to and experience
of justice processes. They specify the need to ensure that victims receive adequate information22
and are assisted to access justice. Victims, including those with particular vulnerabilities, must be
treated with humanity and dignity,23 and their privacy and safety, both physical and psychological,
must be safeguarded.24
The types of reparation that have been understood as required include: restitution, compensa
tion, rehabilitation, satisfaction, and guarantees of non-repetition.25 This has been underscored by
the Committee against Torture in its General Comment no. 3 on Article 14 of the Convention.26
Ben Emmerson (Special Rapporteur), Report of the Special Rapporteur on the Promotion and Protection of Human
Rights and Fundamental Freedoms While Countering Terrorism, ¶¶ 49-62, U.N. Doc. A/HRC/20/14 (June 4,
2012); Pablo de Greiff (Special Rapporteur), Report of the Special Rapporteur on the Promotion of Truth, Justice,
Reparation and Guarantees of Non-recurrence, U.N. Doc. A/HRC/21/46 (Aug. 9, 2012); Sir Nigel Rodley (Special
Rapporteur), Question of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶¶ 24-30,
U.N. Doc. A/55/290 (Aug. 11, 2000); Theo van Boven (Special Rapporteur), Report of the Special Rapporteur on
Torture, ¶¶ 29-35 U.N. Doc. A/58/120 (July 3, 2003); Manfred Nowak (Special Rapporteur), Implementation of
General Assembly Resolution 60/251 of 15 March 2006, ¶¶ 61-68, U.N. Doc. A/HRC/4/33 (Jan. 15, 2007).
17
Convention Respecting the Laws and Customs of War on Land (adopted 18 October 1907, entered into force 26
January 1910).
18
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978).
19
Basic Principles and Guidelines, supra note 9, at 11.
20
Int’l Law Ass’n, Declaration of International Law Principles on Reparation for Victims of Armed Conflict, Res.
2/2010, Arts. 6, 30 (74th Conference, The Hague (Aug. 15-19, 2010).
21
Basic Principles and Guidelines, supra note 9, at 3(c). See also World Conference on Human Rights, Vienna
Declaration and Programme of Action, ¶ 27, U.N. Doc. A/CONF.157/53 (June 25, 1993).
22
Anguelova v Bulgaria, 2002-IV Eur. Ct. H.R. 355; Zontul v Greece App. No. 12294/07 Eur. Ct. H.R. (Jan. 17,
2012) [115]; High Commissioner for Human Rights, Recommended Principles and Guidelines on Human Rights and
Trafficking, § 9.2, U.N. Doc. E/2002/68/Add.1 (May 20, 2002).
23
AT v. Hungary, ¶ 9.6(II)(vi), U.N. Doc. CEDAW/C/32/D/2/2003 (Jan. 26, 2005); HRC, General Comment
31, supra note 14, at ¶ 15; U.N. Committee on the Rights of the Child, General Comment 5, General Measures
of Implementation of the Convention on the Rights of the Child, ¶ 24, U.N. Doc. CRC/GC/2003/5 (Oct. 3,
2003); Basic Principles and Guidelines, supra note 9, at 12(c); Aksoy v Turkey, 1996-VI Eur. Ct. H.R. 98.
24
Basic Principles and Guidelines, supra note 9, at 10, 12(b).
25
Id.
26
CAT, General Comment 3, supra note 14, at ¶ 6.
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