basis in order to award reparations in a particular case. In this
regard the Committee clearly states in General Comment 3, I
quote, “the importance of the victim participation in the redress
process, and that the restoration of the dignity of the victim is the
ultimate objective of the provision of redress.”16 Not listening
to the victims’ needs can be very counterproductive for the
implementation of reparation measures. And here I would like
to mention, well actually a very sad example is, you know,
Mexico is currently facing a huge tragedy caused by the
violence of organized crime but also the response of the state to
that violence. It has caused more than 100,000 killings, around
30,000 people disappeared, other thousands of people tortured.
As part of this tragedy, a couple of years ago a big group of
victims organized and started pressing the government to negotiate some reparation measures and what to do in this situation.
This process had some very interesting results actually. The
Victims Law,17 which deals in a very progressive way with the
issue of reparations, was a product of these negotiations.
I think General Comment 3 represents the opportunity for
the Committee to expand its decisions on individual complaints
in order to determine reparation measures required by the case
in accordance with a UN instrument and the jurisprudence of
international bodies, such as the Inter-American Court of Human
Rights. It will be very important for other UN bodies and NGOs
to strongly support this process because at the beginning it will
undoubtedly face resistance by states that have accepted the
individual complaint mechanisms. The Committee against
Torture and other UN committees will face claims by states
regarding the powers of those bodies to award reparations in such
a detailed way, claims that might be based on the quasi-judicial
nature of the committees. However, the award of reparations
should be conceived as implicit within the adjudication powers
that treaties confer to the committees regardless of their quasijudicial nature. This means that as long as the committee has
powers upon a particular case of human rights violations, it also
implicitly has the power to award particular reparation measures.
Thus, the Committee [against Torture] has the possibility of
addressing reparations in a way far beyond what it has previously
adopted in the past. This is in accordance with its mandate for
individual complaints and with what the Committee itself has
determined in General Comment 3, which it recently adopted.
But also another issue that was treated by these negotiations
was the building of a victims’ memorial to the victims of the
violence of these last years. But what happened basically is that
the negotiations stopped at that point and suddenly the federal
government publically announced the building of a victims’
memorial. They built it in a place that is by the main military
base in Mexico, which for many victims was considered an
offense because the military actually is one of the main actors
in this tragedy, one of the main responsible for this situation. But
the main problem is that this memorial was built without previous consultation with the victims about what kind of memorial
they wanted. So, many victims took this as an offense and it was
actually counterproductive, had no reparation really at all. And
of course this profoundly affected the dialogue between government and victims and so this is something the Committee would
like to avoid when issuing reparation measures.
The way to avoid it is by listening to victims’ needs, therefore
awarding concrete measures based on those needs. The Committee against Torture’s Rules and Procedures18 somewhat already
provide a solution for this. Rule 117 says that the Committee may
hold closed meetings in order to provide further clarification. Regarding these “further clarifications,” I would like to recall a very
interesting article published in SUR Journal a couple of years
ago. The article is about the compliance with the Inter-American
Court’s rulings and one of the very interesting findings of this
article is that the more detailed the reparation measure is, the
more the chances that the state will comply with that measure.
Like for example if, as the Court has repeatedly stated, it orders
the state to conduct a serious investigation to punish the perpetrators. Well, that’s a very open statement; it leaves to the state
all the means to comply with this order. And, well, we know that
states are not enthusiastic about complying with international
bodies’ resolutions. I mean, it has no instructions for the state to
comply with these measures. So, it’s very different from telling
the state you should conduct an investigation by applying the
Istanbul Protocol, this and that, so that’s a better way to follow
up the decision.
The Need for Improvements
to Committee Procedure
However, there need to be several changes in the Committee’s
procedure for resolving individual complaints in order to deal
effectively with reparation measures. The one I think is the most
important is the one regarding the victims’ point of view as the
basis for awarding reparation measures. These measures cannot
be filled without considering the victims’ perspective. Particular
measures of restitution, compensation, rehabilitation, satisfaction,
and guarantees of non-repetition are created in accordance
with the victims’ needs—something that the Committee cannot
address by only measuring the damage caused by the violation in abstract. Each victim suffers the consequences of gross
human rights violations such as torture in very different ways.
Therefore, the Committee should take into account this objective
21
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