(art. 14) and the Convention on the Rights of the Child (art. 39). International humanitarian law
and international criminal law are also relevant in this regard, in particular the Hague Convention respecting the Laws and Customs of War on Land (art. 3), the Protocol Additional to the
Geneva Conventions relating to the Protection of Victims of International Armed Conflicts (art.
91) and the Rome Statute of the International Criminal Court (arts. 68 and 75).
At the same time, customary international law, as embodied in the law of State responsibility
and in interaction with the progressive development of human rights treaty law, is solidifying
the legal basis of a right to a remedy and reparation for victims of human rights violations.
While the International Law Commission, in its recent formulation of the law of State responsibility, largely focused on the State as the subject of wrongs committed against other States, it
cannot be overlooked that the emergence of human rights in international law has altered the
traditional concept of State responsibility. Obligations assumed by a State under international
human rights and humanitarian law entail legal consequences not only vis-à-vis other States
but also with respect to individuals and groups of persons who are under the jurisdiction of
the State. The integration of human rights into State responsibility has brought about the basic
premise that, in instances of breaches of international obligations, redress and reparation are
due not only to States but also to the injured persons and groups themselves.
It is generally understood that the right to reparation has a dual dimension under international
law: (a) a substantive dimension to be translated into the duty to provide redress for harm suffered in the form of restitution, compensation, rehabilitation, satisfaction and, as the case may
be, guarantees of non-repetition; and (b) a procedural dimension as instrumental in securing
this substantive redress. The procedural dimension is subsumed in the concept of the duty to
provide “effective domestic remedies” explicit in most major human rights instruments. As
stated authoritatively by the Human Rights Committee, the duty of States to make reparations
to individuals whose rights under the Covenant have been violated is a component of effective domestic remedies: “without reparation to individuals whose Covenant rights have been
violated, the obligation to provide effective remedy […] is not discharged.”11 This affirms the
jurisprudence of several human rights bodies which attaches increasing importance to effective
remedies as implying a right of the victims and not only a duty on States.
It is characteristic of the legal approach to claim and materialize rights by means of (quasi-)judicial adjudication which, in human rights cases, generally involves the applicant victim and the
State concerned. In legal texts and commentaries the right to reparation is usually viewed from
the perspective of judicial adjudication and case law thus developed. Decisions, as outcome of
such a legal process, may be of considerable importance for the applicant victim but would not
in itself have an effect on other victims who may find themselves in similar situations as a result
of gross and systematic violations of human rights. Therefore, particularly in situations of transitional justice where national societies are seeking to repair serious harm and injury inflicted as
11
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General comment N° 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant.
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