Updated Set of principles for the protection and promotion of human rights through action to combat impunity.
|United NationsDistr. GENERAL
8 February 2005
COMMISSION ON HUMAN RIGHTS
PROMOTION AND PROTECTION OF HUMAN RIGHTS
Report of the independent expert to update the Set of principles to combat impunity, Diane Orentlicher*
Updated Set of principles for the protection and promotion of human rights through action to combat impunity
* The report was submitted after the deadline in order to take into account replies of all respondents as well as the results of the expert workshop held in November 2004.
SYNOPTICAL TABLE OF THE UPDATED SET OF PRINCIPLES FOR THE PROTECTION AND PROMOTION OF HUMAN RIGHTS THROUGH ACTION TO COMBAT IMPUNITY
I. COMBATING IMPUNITY: GENERAL OBLIGATIONS
- Principle 1. General obligations of States to take effective action to combat impunityII. THE RIGHT TO KNOW A. General principles
- Principle 2. The inalienable right to the truth
- Principle 3. The duty to preserve memory
- Principle 4. The victims’ right to know
- Principle 5. Guarantees to give effect to the right to know B. Commissions of inquiry
- Principle 6. The establishment and role of truth commissions
- Principle 7. Guarantees of independence, impartiality and competence
- Principle 8. Definition of a commission’s terms of reference
- Principle 9. Guarantees for persons implicated
- Principle 10. Guarantees for victims and witnesses testifying on their behalf
- Principle 11. Adequate resources for commissions
- Principle 12. Advisory functions of the commissions
- Principle 13. Publicizing the commission’s reports C. Preservation of and access to archives bearing witness to violations
- Principle 14. Measures for the preservation of archives
- Principle 15. Measures for facilitating access to archives
- Principle 16. Cooperation between archive departments and the courts and non-judicial commissions of inquiry
- Principle 17. Specific measures relating to archives containing names
- Principle 18. Specific measures related to the restoration of or transition to democracy and/or peaceIII. THE RIGHT TO JUSTICE A. General principles
- Principle 19. Duties of States with regard to the administration of justice B. Distribution of jurisdiction between national, foreign, international and internationalized courts
- Principle 20. Jurisdiction of international and internationalized criminal tribunals
- Principle 21. Measures for strengthening the effectiveness of international legal principles concerning universal and international jurisdiction C. Restrictions on rules of law justified by action to combat impunity
- Principle 22. Nature of restrictive measures
- Principle 23. Restrictions on prescription
- Principle 24. Restrictions and other measures relating to amnesty
- Principle 25. Restrictions on the right of asylum
- Principle 26. Restrictions on extradition/non bis in idem
- Principle 27. Restrictions on justifications related to due obedience, superior responsibility, and official status
- Principle 28. Restrictions on the effects of legislation on disclosure or repentance
- Principle 29. Restrictions on the jurisdiction of military courts
- Principle 30. Restrictions on the principle of the irremovability of judgesIV. THE RIGHT TO REPARATION/GUARANTEES OF NON-RECURRENCE A. The right to reparation
- Principle 31. Rights and duties arising out of the obligation to make reparation
- Principle 32. Reparation procedures
- Principle 33. Publicizing reparation procedures
- Principle 34. Scope of the right to reparationB. Guarantees of non-recurrence of violations
- Principle 35. General principles
- Principle 36. Reform of State institutions
- Principle 37. Disbandment of parastatal armed forces/demobilization and social reintegration of children
- Principle 38. Reform of laws and institutions contributing to impunity
SET OF PRINCIPLES FOR THE PROTECTION AND PROMOTION OF HUMAN RIGHTS THROUGH ACTION TO COMBAT IMPUNITY
Recalling the Preamble to the Universal Declaration of Human Rights, which recognizes that disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind,
Aware that there is an ever-present risk that such acts may again occur,
Reaffirming the commitment made by Member States under Article 56 of the Charter of the United Nations to take joint and separate action, giving full importance to developing effective international cooperation for the achievement of the purposes set forth in Article 55 of the Charter concerning universal respect for, and observance of, human rights and fundamental freedoms for all,
Considering that the duty of every State under international law to respect and to secure respect for human rights requires that effective measures should be taken to combat impunity,
Aware that there can be no just and lasting reconciliation unless the need for justice is effectively satisfied,
Equally aware that forgiveness, which may be an important element of reconciliation, implies, insofar as it is a private act, that the victim or the victim’s beneficiaries know the perpetrator of the violations and that the latter has acknowledged his or her deeds,
Recalling the recommendation set forth in paragraph 91 of Part II of the Vienna Declaration and Programme of Action, wherein the World Conference on Human Rights(June 1993) expressed its concern about the impunity of perpetrators of human rights violations and encouraged the efforts of the Commission on Human Rights to examine all aspects of the issue,
Convinced, therefore, that national and international measures must be taken for that purpose with a view to securing jointly, in the interests of the victims of violations, observance of the right to know and, by implication, the right to the truth, the right to justice and the right to reparation, without which there can be no effective remedy against the pernicious effects of impunity,
Pursuant to the Vienna Declaration and Programme of Action, the following principles are intended as guidelines to assist States in developing effective measures for combating impunity.
“Impunity” means the impossibility, de jure or de facto, of bringing the perpetrators of violations to account – whether in criminal, civil, administrative or disciplinary proceedings – since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims.
B. Serious crimes under international law
As used in these principles, the phrase “serious crimes under international law” encompasses grave breaches of the Geneva Conventions of 12 August 1949 and of Additional Protocol I thereto of 1977 and other violations of international humanitarian law that are crimes under international law, genocide, crimes against humanity, and other violations of internationally protected human rights that are crimes under international law and/or which international law requires States to penalize, such as torture, enforced disappearance, extrajudicial execution, and slavery.
C. Restoration of or transition to democracy and/or peace
This expression, as used in these principles, refers to situations leading, within the framework of a national movement towards democracy or peace negotiations aimed at ending an armed conflict, to an agreement, in whatever form, by which the actors or parties concerned agree to take measures against impunity and the recurrence of human rights violations.
D. Truth commissions
As used in these principles, the phrase “truth commissions” refers to official, temporary, non-judicial fact-finding bodies that investigate a pattern of abuses of human rights or humanitarian law, usually committed over a number of years.
As used in these principles, the word “archives” refers to collections of documents pertaining to violations of human rights and humanitarian law from sources including (a) national governmental agencies, particularly those that played significant roles in relation to human rights violations; (b) local agencies, such as police stations, that were involved in human rights violations; (c) State agencies, including the office of the prosecutor and the judiciary, that are involved in the protection of human rights; and (d) materials collected by truth commissions and other investigative bodies.
I. COMBATING IMPUNITY: GENERAL OBLIGATIONS
PRINCIPLE 1. GENERAL OBLIGATIONS OF STATES TO TAKE EFFECTIVE ACTION TO COMBAT IMPUNITYImpunity arises from a failure by States to meet their obligations to investigate violations; to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations.
II. THE RIGHT TO KNOW
A. General principles
PRINCIPLE 2. THE INALIENABLE RIGHT TO THE TRUTH
Every people has the inalienable right to know the truth about past events concerning the perpetration of heinous crimes and about the circumstances and reasons that led, through massive or systematic violations, to the perpetration of those crimes. Full and effective exercise of the right to the truth provides a vital safeguard against the recurrence of violations.
PRINCIPLE 3. THE DUTY TO PRESERVE MEMORY
A people’s knowledge of the history of its oppression is part of its heritage and, as such, must be ensured by appropriate measures in fulfilment of the State’s duty to preserve archives and other evidence concerning violations of human rights and humanitarian law and to facilitate knowledge of those violations. Such measures shall be aimed at preserving the collective memory from extinction and, in particular, at guarding against the development of revisionist and negationist arguments.
PRINCIPLE 4. THE VICTIMS’ RIGHT TO KNOW
Irrespective of any legal proceedings, victims and their families have the imprescriptible right to know the truth about the circumstances in which violations took place and, in the event of death or disappearance, the victims’ fate.
PRINCIPLE 5. GUARANTEES TO GIVE EFFECT TO THE RIGHT TO KNOW
States must take appropriate action, including measures necessary to ensure the independent and effective operation of the judiciary, to give effect to the right to know.Appropriate measures to ensure this right may include non-judicial processes that complement the role of the judiciary. Societies that have experienced heinous crimes perpetrated on a massive or systematic basis may benefit in particular from the creation of a truth commission or other commission of inquiry to establish the facts surrounding those violations so that the truth may be ascertained and to prevent the disappearance of evidence. Regardless of whether a State establishes such a body, it must ensure the preservation of, and access to, archives concerning violations of human rights and humanitarian law.
B. Commissions of inquiry
PRINCIPLE 6. THE ESTABLISHMENT AND ROLE OF TRUTH COMMISSIONS
To the greatest extent possible, decisions to establish a truth commission, define its terms of reference and determine its composition should be based upon broad public consultations in which the views of victims and survivors especially are sought. Special efforts should be made to ensure that men and women participate in these deliberations on a basis of equality. In recognition of the dignity of victims and their families, investigations undertaken by truth commissions should be conducted with the object in particular of securing recognition of such parts of the truth as were formerly denied.
PRINCIPLE 7. GUARANTEES OF INDEPENDENCE, IMPARTIALITY AND COMPETENCE
Commissions of inquiry, including truth commissions, must be established through procedures that ensure their independence, impartiality and competence. To this end, the terms of reference of commissions of inquiry, including commissions that are international in character, should respect the following guidelines:
- (a) They shall be constituted in accordance with criteria making clear to the public the competence and impartiality of their members, including expertise within their membership in the field of human rights and, if relevant, of humanitarian law. They shall also be constituted in accordance with conditions ensuring their independence, in particular by the irremovability of their members during their terms of office except on grounds of incapacity or behaviour rendering them unfit to discharge their duties and pursuant to procedures ensuring fair, impartial and independent determinations;
(b) Their members shall enjoy whatever privileges and immunities are necessary for their protection, including in the period following their mission, especially in respect of any defamation proceedings or other civil or criminal action brought against them on the basis of facts or opinions contained in the commissions’ reports;
(c) In determining membership, concerted efforts should be made to ensure adequate representation of women as well as of other appropriate groups whose members have been especially vulnerable to human rights violations.
PRINCIPLE 8. DEFINITION OF A COMMISSION’S TERMS OF REFERENCE
To avoid conflicts of jurisdiction, the commission’s terms of reference must be clearly defined and must be consistent with the principle that commissions of inquiry are not intended to act as substitutes for the civil, administrative or criminal courts. In particular, criminal courts alone have jurisdiction to establish individual criminal responsibility, with a view as appropriate to passing judgement and imposing a sentence. In addition to the guidelines set forth in principles 12 and 13, the terms of reference of a commission of inquiry should incorporate or reflect the following stipulations:
- (a) The commission’s terms of reference may reaffirm its right: to seek the assistance of law enforcement authorities, if required, including for the purpose, subject to the terms of principle 10 (a), of calling for testimonies; to inspect any places concerned in its investigations; and/or to call for the delivery of relevant documents;
(b) If the commission has reason to believe that the life, health or safety of a person concerned by its inquiry is threatened or that there is a risk of losing an element of proof, it may seek court action under an emergency procedure or take other appropriate measures to end such threat or risk;
(c) Investigations undertaken by a commission of inquiry may relate to all persons alleged to have been responsible for violations of human rights and/or humanitarian law, whether they ordered them or actually committed them, acting as perpetrators or accomplices, and whether they are public officials or members of quasi-governmental or private armed groups with any kind of link to the State, or of non-governmental armed movements. Commissions of inquiry may also consider the role of other actors in facilitating violations of human rights and humanitarian law;
(d) Commissions of inquiry may have jurisdiction to consider all forms of violations of human rights and humanitarian law. Their investigations should focus as a matter of priority on violations constituting serious crimes under international law, including in particular violations of the fundamental rights of women and of other vulnerable groups;
(e) Commissions of inquiry shall endeavour to safeguard evidence for later use in the administration of justice;
(f) The terms of reference of commissions of inquiry should highlight the importance of preserving the commission’s archives. At the outset of their work, commissions should clarify the conditions that will govern access to their documents, including conditions aimed at preventing disclosure of confidential information while facilitating public access to their archives.
PRINCIPLE 9. GUARANTEES FOR PERSONS IMPLICATED
Before a commission identifies perpetrators in its report, the individuals concerned shall be entitled to the following guarantees:
- (a) The commission must try to corroborate information implicating individuals before they are named publicly;(b) The individuals implicated shall be afforded an opportunity to provide a statement setting forth their version of the facts either at a hearing convened by the commission while conducting its investigation or through submission of a document equivalent to a right of reply for inclusion in the commission’s file.
PRINCIPLE 10. GUARANTEES FOR VICTIMS AND WITNESSES TESTIFYING ON THEIR BEHALF
Effective measures shall be taken to ensure the security, physical and psychological well-being, and, where requested, the privacy of victims and witnesses who provide information to the commission.
- (a) Victims and witnesses testifying on their behalf may be called upon to testify before the commission only on a strictly voluntary basis;
(b) Social workers and/or mental health-care practitioners should be authorized to assist victims, preferably in their own language, both during and after their testimony, especially in cases of sexual assault;
(c) All expenses incurred by those giving testimony shall be borne by the State;
(d) Information that might identify a witness who provided testimony pursuant to a promise of confidentially must be protected from disclosure. Victims providing testimony and other witnesses should in any event be informed of rules that will govern disclosure of information provided by them to the commission. Requests to provide information to the commission anonymously should be given serious consideration, especially in cases of sexual assault, and the commission should establish procedures to guarantee anonymity in appropriate cases, while allowing corroboration of the information provided, as necessary.
PRINCIPLE 11. ADEQUATE RESOURCES FOR COMMISSIONS
The commission shall be provided with:
- (a) Transparent funding to ensure that its independence is never in doubt;
(b) Sufficient material and human resources to ensure that its credibility is never in doubt.
PRINCIPLE 12. ADVISORY FUNCTIONS OF THE COMMISSIONS
The commission’s terms of reference should include provisions calling for it to include in its final report recommendations concerning legislative and other action to combat impunity. The terms of reference should ensure that the commission incorporates women’s experiences in its work, including its recommendations. When establishing a commission of inquiry, the Government should undertake to give due consideration to the commission’s recommendations.
PRINCIPLE 13. PUBLICIZING THE COMMISSION’S REPORTS
For security reasons or to avoid pressure on witnesses and commission members, the commission’s terms of reference may stipulate that relevant portions of its inquiry shall be kept confidential. The commission’s final report, on the other hand, shall be made public in full and shall be disseminated as widely as possible.
C. Preservation of and access to archives bearing witness to violations
PRINCIPLE 14. MEASURES FOR THE PRESERVATION OF ARCHIVES
The right to know implies that archives must be preserved. Technical measures and penalties should be applied to prevent any removal, destruction, concealment or falsification of archives, especially for the purpose of ensuring the impunity of perpetrators of violations of human rights and/or humanitarian law.
PRINCIPLE 15. MEASURES FOR FACILITATING ACCESS TO ARCHIVES>
Access to archives shall be facilitated in order to enable victims and their relatives to claim their rights. Access shall be facilitated, as necessary, for persons implicated, who request it for their defence. Access to archives should also be facilitated in the interest of historical research, subject to reasonable restrictions aimed at safeguarding the privacy and security of victims and other individuals. Formal requirements governing access may not be used for purposes of censorship.
PRINCIPLE 16. COOPERATION BETWEEN ARCHIVE DEPARTMENTS AND THE COURTS AND NON-JUDICIAL COMMISSIONS OF INQUIRY
Courts and non-judicial commissions of inquiry, as well as investigators reporting to them, must have access to relevant archives. This principle must be implemented in a manner that respects applicable privacy concerns, including in particular assurances of confidentiality provided to victims and other witnesses as a precondition of their testimony. Access may not be denied on grounds of national security unless, in exceptional circumstances, the restriction has been prescribed by law; the Government has demonstrated that the restriction is necessary in a democratic society to protect a legitimate national security interest; and the denial is subject to independent judicial review.
PRINCIPLE 17. SPECIFIC MEASURES RELATING TO ARCHIVES CONTAINING NAMES
(a) For the purposes of this principle, archives containing names shall be understood to be those archives containing information that makes it possible, directly or indirectly, to identify the individuals to whom they relate;
(b) All persons shall be entitled to know whether their name appears in State archives and, if it does, by virtue of their right of access, to challenge the validity of the information concerning them by exercising a right of reply. The challenged document should include a cross-reference to the document challenging its validity and both must be made available together whenever the former is requested. Access to the files of commissions of inquiry must be balanced against the legitimate expectations of confidentiality of victims and other witnesses testifying on their behalf in accordance with principles 8 (f) and 10 (d).
PRINCIPLE 18. SPECIFIC MEASURES RELATED TO THE RESTORATION OF OR TRANSITION TO DEMOCRACY AND/OR PEACE
(a) Measures should be taken to place each archive centre under the responsibility of a specifically designated office;
(b) When inventorying and assessing the reliability of stored archives, special attention should be given to archives relating to places of detention and other sites of serious violations of human rights and/or humanitarian law such as torture, in particular when the existence of such places was not officially recognized;
(c) Third countries shall be expected to cooperate with a view to communicating or restituting archives for the purpose of establishing the truth.
III. THE RIGHT TO JUSTICE
A. General principles
PRINCIPLE 19. DUTIES OF STATES WITH REGARD TO THE ADMINISTRATION OF JUSTICE
States shall undertake prompt, thorough, independent and impartial investigations of violations of human rights and international humanitarian law and take appropriate measures in respect of the perpetrators, particularly in the area of criminal justice, by ensuring that those responsible for serious crimes under international law are prosecuted, tried and duly punished. Although the decision to prosecute lies primarily within the competence of the State, victims, their families and heirs should be able to institute proceedings, on either an individual or a collective basis, particularly as parties civiles or as persons conducting private prosecutions in States whose law of criminal procedure recognizes these procedures. States should guarantee broad legal standing in the judicial process to any wronged party and to any person or non-governmental organization having a legitimate interest therein.
B. Distribution of jurisdiction between national, foreign, international and internationalized courts
PRINCIPLE 20. JURISDICTION OF INTERNATIONAL AND INTERNATIONALIZED CRIMINAL TRIBUNALS
It remains the rule that States have primary responsibility to exercise jurisdiction over serious crimes under international law. In accordance with the terms of their statutes, international and internationalized criminal tribunals may exercise concurrent jurisdiction when national courts cannot offer satisfactory guarantees of independence and impartiality or are materially unable or unwilling to conduct effective investigations or prosecutions. States must ensure that they fully satisfy their legal obligations in respect of international and internationalized criminal tribunals, including where necessary through the enactment of domestic legislation that enables States to fulfil obligations that arise through their adherence to the Rome Statute of the International Criminal Court or under other binding instruments, and through implementation of applicable obligations to apprehend and surrender suspects and to cooperate in respect of evidence.
PRINCIPLE 21. MEASURES FOR STRENGTHENING THE EFFECTIVENESS OF INTERNATIONAL LEGAL PRINCIPLES CONCERNING UNIVERSAL AND INTERNATIONAL JURISDICTION
States should undertake effective measures, including the adoption or amendment of internal legislation, that are necessary to enable their courts to exercise universal jurisdiction over serious crimes under international law in accordance with applicable principles of customary and treaty law. States must ensure that they fully implement any legal obligations they have assumed to institute criminal proceedings against persons with respect to whom there is credible evidence of individual responsibility for serious crimes under international law if they do not extradite the suspects or transfer them for prosecution before an international or internationalized tribunal.
C. Restrictions on rules of law justified by action to combat impunity
PRINCIPLE 22. NATURE OF RESTRICTIVE MEASURES
States should adopt and enforce safeguards against any abuse of rules such as those pertaining to prescription, amnesty, right to asylum, refusal to extradite, non bis in idem, due obedience, official immunities, repentance, the jurisdiction of military courts and the irremovability of judges that fosters or contributes to impunity.
PRINCIPLE 23. RESTRICTIONS ON PRESCRIPTION
Prescription – of prosecution or penalty – in criminal cases shall not run for such period as no effective remedy is available. Prescription shall not apply to crimes under international law that are by their nature imprescriptible. When it does apply, prescription shall not be effective against civil or administrative actions brought by victims seeking reparation for their injuries.
PRINCIPLE 24. RESTRICTIONS AND OTHER MEASURES RELATING TO AMNESTY
Even when intended to establish conditions conducive to a peace agreement or to foster national reconciliation, amnesty and other measures of clemency shall be kept within the following bounds:
- (a) The perpetrators of serious crimes under international law may not benefit from such measures until such time as the State has met the obligations to which principle 19 refers or the perpetrators have been prosecuted before a court with jurisdiction – whether international, internationalized or national – outside the State in question;
(b) Amnesties and other measures of clemency shall be without effect with respect to the victims’ right to reparation, to which principles 31 through 34 refer, and shall not prejudice the right to know;
(c) Insofar as it may be interpreted as an admission of guilt, amnesty cannot be imposed on individuals prosecuted or sentenced for acts connected with the peaceful exercise of their right to freedom of opinion and expression. When they have merely exercised this legitimate right, as guaranteed by articles 18 to 20 of the Universal Declaration of Human Rights and 18, 19, 21 and 22 of the International Covenant on Civil and Political Rights, the law shall consider any judicial or other decision concerning them to be null and void; their detention shall be ended unconditionally and without delay;
(d) Any individual convicted of offences other than those to which paragraph (c) of this principle refers who comes within the scope of an amnesty is entitled to refuse it and request a retrial, if he or she has been tried without benefit of the right to a fair hearing guaranteed by articles 10 and 11 of the Universal Declaration of Human Rights and articles 9, 14 and 15 of the International Covenant on Civil and Political Rights, or if he or she was convicted on the basis of a statement established to have been made as a result of inhuman or degrading interrogation, especially under torture.
PRINCIPLE 25. RESTRICTIONS ON THE RIGHT OF ASYLUM
Under article 1, paragraph 2, of the Declaration on Territorial Asylum, adopted by the General Assembly on 14 December 1967, and article 1 F of the Convention relating to the Status of Refugees of 28 July 1951, States may not extend such protective status, including diplomatic asylum, to persons with respect to whom there are serious reasons to believe that they have committed a serious crime under international law.
PRINCIPLE 26. RESTRICTIONS ON EXTRADITION/NON BIS IN IDEM
(a) Persons who have committed serious crimes under international law may not, in order to avoid extradition, avail themselves of the favourable provisions generally relating to political offences or of the principle of non-extradition of nationals. Extradition should always be denied, however, especially by abolitionist countries, if the individual concerned risks the death penalty in the requesting country. Extradition should also be denied where there are substantial grounds for believing that the suspect would be in danger of being subjected to gross violations of human rights such as torture; enforced disappearance; or extra-legal, arbitrary or summary execution. If extradition is denied on these grounds, the requested State shall submit the case to its competent authorities for the purpose of prosecution;
(b) The fact that an individual has previously been tried in connection with a serious crime under international law shall not prevent his or her prosecution with respect to the same conduct if the purpose of the previous proceedings was to shield the person concerned from criminal responsibility, or if those proceedings otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner that, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.
PRINCIPLE 27. RESTRICTIONS ON JUSTIFICATIONS RELATED TO DUE OBEDIENCE, SUPERIOR RESPONSIBILITY, AND OFFICIAL STATUS
(a) The fact that the perpetrator of violations acted on the orders of his or her Government or of a superior does not exempt him or her from responsibility, in particular criminal, but may be regarded as grounds for reducing the sentence, in conformity with principles of justice;
(b) The fact that violations have been committed by a subordinate does not exempt that subordinate’s superiors from responsibility, in particular criminal, if they knew or had at the time reason to know that the subordinate was committing or about to commit such a crime and they did not take all the necessary measures within their power to prevent or punish the crime;
(c) The official status of the perpetrator of a crime under international law – even if acting as head of State or Government – does not exempt him or her from criminal or other responsibility and is not grounds for a reduction of sentence.
PRINCIPLE 28. RESTRICTIONS ON THE EFFECTS OF LEGISLATION ON DISCLOSURE OR REPENTANCE
The fact that a perpetrator discloses the violations that he, she or others have committed in order to benefit from the favourable provisions of legislation on disclosure or repentance cannot exempt him or her from criminal or other responsibility. The disclosure may only provide grounds for a reduction of sentence in order to encourage revelation of the truth. When disclosures may subject a perpetrator to persecution, principle 25 notwithstanding, the person making the disclosure may be granted asylum – not refugee status – in order to facilitate revelation of the truth.
PRINCIPLE 29. RESTRICTIONS ON THE JURISDICTION OF MILITARY COURTS
The jurisdiction of military tribunals must be restricted solely to specifically military offences committed by military personnel, to the exclusion of human rights violations, which shall come under the jurisdiction of the ordinary domestic courts or, where appropriate, in the case of serious crimes under international law, of an international or internationalized criminal court.
PRINCIPLE 30. RESTRICTIONS ON THE PRINCIPLE OF THE IRREMOVABILITY OF JUDGES
The principle of irremovability, as the basic guarantee of the independence of judges, must be observed in respect of judges who have been appointed in conformity with the requirements of the rule of law. Conversely, judges unlawfully appointed or who derive their judicial power from an act of allegiance may be relieved of their functions by law in accordance with the principle of parallelism. They must be provided an opportunity to challenge their dismissal in proceedings that meet the criteria of independence and impartiality with a view toward seeking reinstatement.
IV. THE RIGHT TO REPARATION/GUARANTEES OF NON-RECURRENCE
A. The right to reparation
PRINCIPLE 31. RIGHTS AND DUTIES ARISING OUT OF THE OBLIGATION TO MAKE REPARATION
Any human rights violation gives rise to a right to reparation on the part of the victim or his or her beneficiaries, implying a duty on the part of the State to make reparation and the possibility for the victim to seek redress from the perpetrator.
PRINCIPLE 32. REPARATION PROCEDURES
All victims shall have access to a readily available, prompt and effective remedy in the form of criminal, civil, administrative or disciplinary proceedings subject to the restrictions on prescription set forth in principle 23. In exercising this right, they shall be afforded protection against intimidation and reprisals. Reparations may also be provided through programmes, based upon legislative or administrative measures, funded by national or international sources, addressed to individuals and to communities. Victims and other sectors of civil society should play a meaningful role in the design and implementation of such programmes. Concerted efforts should be made to ensure that women and minority groups participate in public consultations aimed at developing, implementing, and assessing reparations programmes. Exercise of the right to reparation includes access to applicable international and regional procedures.
PRINCIPLE 33. PUBLICIZING REPARATION PROCEDURES
Ad hoc procedures enabling victims to exercise their right to reparation should be given the widest possible publicity by private as well as public communication media. Such dissemination should take place both within and outside the country, including through consular services, particularly in countries to which large numbers of victims have been forced into exile.
PRINCIPLE 34. SCOPE OF THE RIGHT TO REPARATION
The right to reparation shall cover all injuries suffered by victims; it shall include measures of restitution, compensation, rehabilitation, and satisfaction as provided by international law. In the case of forced disappearance, the family of the direct victim has an imprescriptible right to be informed of the fate and/or whereabouts of the disappeared person and, in the event of decease, that person’s body must be returned to the family as soon as it has been identified, regardless of whether the perpetrators have been identified or prosecuted.
B. Guarantees of non-recurrence of violations
PRINCIPLE 35. GENERAL PRINCIPLES
States shall ensure that victims do not again have to endure violations of their rights. To this end, States must undertake institutional reforms and other measures necessary to ensure respect for the rule of law, foster and sustain a culture of respect for human rights, and restore or establish public trust in government institutions. Adequate representation of women and minority groups in public institutions is essential to the achievement of these aims. Institutional reforms aimed at preventing a recurrence of violations should be developed through a process of broad public consultations, including the participation of victims and other sectors of civil society. Such reforms should advance the following objectives:
- (a) Consistent adherence by public institutions to the rule of law;
(b) The repeal of laws that contribute to or authorize violations of human rights and/or humanitarian law and enactment of legislative and other measures necessary to ensure respect for human rights and humanitarian law, including measures that safeguard democratic institutions and processes;
(c) Civilian control of military and security forces and intelligence services and disbandment of parastatal armed forces;
(d) Reintegration of children involved in armed conflict into society.
PRINCIPLE 36. REFORM OF STATE INSTITUTIONS
States must take all necessary measures, including legislative and administrative reforms, to ensure that public institutions are organized in a manner that ensures respect for the rule of law and protection of human rights. At a minimum, States should undertake the following measures:
- (a) Public officials and employees who are personally responsible for gross violations of human rights, in particular those involved in military, security, police, intelligence and judicial sectors, shall not continue to serve in State institutions. Their removal shall comply with the requirements of due process of law and the principle of non-discrimination. Persons formally charged with individual responsibility for serious crimes under international law shall be suspended from official duties during the criminal or disciplinary proceedings;
(b) With respect to the judiciary, States must undertake all other measures necessary to assure the independent, impartial and effective operation of courts in accordance with international standards of due process. Habeas corpus, by whatever name it may be known, must be considered a non-derogable right;
(c) Civilian control of military and security forces as well as of intelligence agencies must be ensured and, where necessary, established or restored. To this end, States should establish effective institutions of civilian oversight over military and security forces and intelligence agencies, including legislative oversight bodies;
(d) Civil complaint procedures should be established and their effective operation assured;
(e) Public officials and employees, in particular those involved in military, security, police, intelligence and judicial sectors, should receive comprehensive and ongoing training in human rights and, where applicable, humanitarian law standards and in implementation of those standards.
PRINCIPLE 37. DISBANDMENT OF PARASTATAL ARMED FORCES/DEMOBILIZATION AND SOCIAL REINTEGRATION OF CHILDREN
Parastatal or unofficial armed groups shall be demobilized and disbanded. Their position in or links with State institutions, including in particular the army, police, intelligence and security forces, should be thoroughly investigated and the information thus acquired made public. States should draw up a reconversion plan to ensure the social reintegration of the members of such groups. Measures should be taken to secure the cooperation of third countries that might have contributed to the creation and development of such groups,particularly through financial or logistical support. Children who have been recruited or used in hostilities shall be demobilized or otherwise released from service. States shall, when necessary, accord these children all appropriate assistance for their physical and psychological recovery and their social integration.
PRINCIPLE 38. REFORM OF LAWS AND INSTITUTIONS CONTRIBUTING TO IMPUNITY
Legislation and administrative regulations and institutions that contribute to or legitimize human rights violations must be repealed or abolished. In particular, emergency legislation and courts of any kind must be repealed or abolished insofar as they infringe the fundamental rights and freedoms guaranteed in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Legislative measures necessary to ensure protection of human rights and to safeguard democratic institutions and processes must be enacted. As a basis for such reforms, during periods of restoration of or transition to democracy and/or peace States should undertake a comprehensive review of legislation and administrative regulations.