protection and redress for victims of crime and human rights violations

More documents

Recommendations

Info

Chapter 15 • Protection and Redress for Victims of Crime and Human Rights Violations3.2 The general legal duty to ensure the effectiveprotection of human rightsThis section will simply highlight some general considerations relating toStates’ legal duty effectively to protect human rights and fundamental freedoms. Theprovisions dealing specifically with questions of prevention, domestic remedies,investigations and so forth will be discussed in greater detail in the relevant subsectionsbelow.3.2.1 The universal levelUnder article 2(1) of the International Covenant on Civil and Political Rights,each State party “undertakes to respect and to ensure to all individuals within itsterritory and subject to its jurisdiction the rights recognized in the present Covenant”(emphasis added). In interpreting article 2, the Human Rights Committee considers itnecessary “to draw the attention of States parties to the fact that the obligation underthe Covenant is not confined to the respect of human rights, but that States partieshave also undertaken to ensure the enjoyment of these rights to all individuals undertheir jurisdiction. This aspect calls for specific activities by the States parties to enableindividuals to enjoy their rights.” 71 The obligation to ensure thus gives rise to positiveState party obligations to secure the enjoyment of the guaranteed rights and freedomsto all persons within their jurisdiction. It follows from this basic and positive legal dutythat States parties may also be required effectively to investigate, prosecute and punishviolations of individual rights and freedoms. 723.2.2 The regional levelAt the regional level, article 1 of the African Charter on Human and Peoples’Rights may at first sight seem to use somewhat less categorical language than theInternational Covenant when stating that States parties “shall recognize the rights,duties and freedoms enshrined in this Charter and shall undertake to adopt legislative orother measures to give effect to them”. However, the reference to “other measures”suggests that this provision entails a clear obligation to take affirmative steps to complywith the obligations laid down by the Charter. This view has been confirmed by theAfrican Commission on Human and Peoples’ Rights, which has held that, under article1 of the African Charter, States parties not only “recognise the rights, obligations andfreedoms proclaimed in the Charter [but] they also commit themselves to respect themand take measures to give effect to them”. 7371 See General Comment No. 3 (Article 2 – Implementation at the national level), in UN doc. HRI/GEN/1/Rev.5, Compilation ofGeneral Comments and General Recommendations Adopted by Human Rights Treaty Bodies (hereinafter referred to as United Nations Compilationof General Comments), p. 112, para. 1; emphasis added.72 See, for example, Communication No. 821/1998, Chongwe v. Zambia (Views adopted on 25 October 2000), in GAOR, A/56/40(vol. II), p. 143, paras. 7-8.73 ACHPR, Avocats Sans Frontières (on behalf of Gaëtan Bwampamye) v. Burundi, Communication No.231/99 decision adopted during the28 th Ordinary session, 23 October – 6 November 2000, para. 31 of the decision as published at:http://www1.umn.edu/humanrts/africa/comcases/231-99.html776 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers
Chapter 15 • Protection and Redress for Victims of Crime and Human Rights ViolationsAs a general rule it must be emphasized that, notwithstanding the fact that thelegal obligations to “respect” and to “ensure” human rights are not included expressisverbis in the treaty concerned, States in any event have a legal duty to perform their treatyobligations in good faith. This basic rule of international law, also known as pacta suntservanda, has been codified in article 26 of the Vienna Convention on the Law ofTreaties and is, of course, equally applicable to human rights treaties as to otherinternational treaties. By failing, for instance, to prevent or vigorously to investigatealleged human rights violations and, where need be, to follow up the investigation witha prosecution, a State undermines its treaty obligations and hence also incursinternational responsibility for being in breach of the law.*****Article 1 of the American Convention on Human Rights uses termsreminiscent of those in article 2 of the International Covenant in that the States parties“undertake to respect the rights and freedoms recognized herein and to ensure to allpersons subject to their jurisdiction the free and full exercise of those rights andfreedoms without any discrimination” (emphasis added).These terms were interpreted by the Inter-American Court of Human Rightsin the Velásquez Rodríguez case, which concerned the disappearance and likely death ofMr. Velásquez at the hands of members of the Honduran National Office ofInvestigation and the Armed Forces. With regard to the obligation to “respect therights and freedoms” recognized by the Convention, the Court emphasized that “theexercise of public authority has certain limits which derive from the fact that humanrights are inherent attributes of human dignity and are, therefore, superior to the powerof the State.” This also means that “the protection of human rights must necessarilycomprise the concept of the restriction of the exercise of state power.” 74Moreover, the obligation to “ensure” the free and full exercise of the rightsguaranteed by the Convention“implies the duty of the States Parties to organize the governmentalapparatus and, in general, all the structures through which public power isexercised, so that they are capable of juridically ensuring the free and fullenjoyment of human rights. As a consequence of this obligation, the Statesmust prevent, investigate and punish any violation of the rights recognizedby the Convention and, moreover, if possible attempt to restore the rightviolated and provide compensation as warranted for damages resultingfrom the violation.” 75The Court added that:“The obligation to ensure the free and full exercise of human rights is notfulfilled by the existence of a legal system designed to make it possible tocomply with this obligation – it also requires the government to conductitself so as to effectively ensure the free and full exercise of human rights.” 7674 I-A Court HR, Velásquez Rodríguez Case, judgment of July 29, 1988, Series C, No. 4, pp. 151-152, para. 165.75 Ibid., p. 152, para. 166.76 Ibid., p. 152, para. 167.Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers 777
Page 1 and 2: .........Chapter 15PROTECTION AND R
Page 3 and 4: Chapter 15 • Protection and Redre
Page 27: Chapter 15 • Protection and Redre
Page 61: Chapter 15 • Protection and Redre

protection and redress for victims of crime and human rights violations

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?