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Chapter 15 • Protection and Redress for Victims of Crime and Human Rights Violations3.3 The duty to prevent human rights violationsPrevention is the alpha and omega of the effective protection of the rights andfreedoms of the human person, and it is thus the ultimate purpose of internationalhuman rights law as well as a key to the creation of a national and international societyin which all persons can live in freedom, peace and security. Prevention, the importanceof which has been emphasized by all international monitoring bodies, begins with theincorporation of international human rights obligations in the domestic legal system. 87Domestic law must then be consistently and fearlessly applied by all competentauthorities, for instance in full independence from the Executive, because a law, nomatter how well and elegantly drafted, only has a preventive impact if potentialoffenders know that they will be pursued in the courts for their trespasses and crimes.Indeed, the second part of this chapter illustrates some of the essential components ofprevention, namely the existence of effective domestic remedies and the prompt,vigorous and impartial investigation of alleged human rights violations.However, in many cases effective prevention also requires social,administrative, educational and other measures such as international and cross-bordercooperation, 88 depending on the needs, problems and circumstances of the countryinvolved. Some examples are given below of references to prevention by theinternational monitoring bodies relating to arbitrary killings, disappearances andtorture.3.3.1 The universal levelAlthough the Human Rights Committee has not elaborated its views on Statesparties’ duty to prevent human rights violations in general, it has often emphasized theneed for prevention with regard to specific issues. Thus, States parties should informthe Committee in their periodic reports about “the legislative, administrative, judicialand other measures they take to prevent and punish acts of torture” and other forms ofill-treatment in conformity with the provisions of the International Covenant on Civiland Political Rights. 89 More specifically, it recommended that Uzbekistan “shouldinstitute an independent system of monitoring and checking all places of detention andpenal institutions on a regular basis, with the purpose of preventing torture and otherabuses of power by law enforcement officials”. 90The Committee has also stated that:“3. The protection against arbitrary deprivation of life which is explicitlyrequired by ... article 6(1) is of paramount importance. The Committeeconsiders that States parties should take measures not only to prevent andpunish deprivation of life by criminal acts, but also to prevent arbitrarykilling by their own security forces. The deprivation of life by the87 On the preventive role of legislation criminalizing ideas based on racial superiority, see the Committee on the Elimination ofRacial Discrimination, in UN doc. GAOR, A/56/18, p. 59, para. 349.88 On the importance of international and cross-border cooperation for the purpose of preventing trafficking in women, see theCommittee on the Elimination of Discrimination against Women, in UN doc. GAOR, A/55/38, p. 38, para. 372.89 General Comment No. 20 (Article 7), in United Nations Compilation of General Comments, p. 140, para. 8.90 UN doc. GAOR, A/56/40 (vol. I), p. 60, para. 7.780 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 Violationsauthorities of the State is a matter of the utmost gravity. Therefore, the lawmust strictly control and limit the circumstances in which a person may bedeprived of his life by such authorities.” 91In the Committee’s view, “States parties should also take specific and effectivemeasures to prevent the disappearance of individuals, something which unfortunatelyhas become all too frequent and leads too often to arbitrary deprivation of life.” 92Lastly, when the Committee concludes that a State party has violated itsobligations under the Covenant in a communication brought under the OptionalProtocol to the Covenant, it consistently informs the State party concerned that it isunder an obligation to prevent such violations from occurring in the future. 933.3.2 The regional levelThe notion of prevention was analysed in somewhat more detail by theInter-American Court of Human Rights in the Velásquez Rodríguez case, in which it ruledthat a State party to the American Convention on Human Rights “has a legal duty totake reasonable steps to prevent human rights violations and to use the means at itsdisposal to carry out a serious investigation of violations committed within itsjurisdiction, to identify those responsible, to impose the appropriate punishment and toensure the victim adequate compensation”. 94 Importantly, the Court added that:“175. This duty to prevent includes all those means of a legal, political,administrative and cultural nature that promote the protection of humanrights and ensure that any violations are considered and treated as illegalacts, which, as such, may lead to the punishment of those responsible andthe obligation to indemnify the victim for damages. It is not possible tomake a detailed list of all such measures, since they vary with the law andthe conditions of each State Party. Of course, while the State is obligated toprevent human rights abuses, the existence of a particular violation doesnot, in itself, prove the failure to take preventive measures. On the otherhand, subjecting a person to official, repressive bodies that practice tortureand assassination with impunity is itself a breach of the duty to preventviolations of the rights to life and physical integrity of the person, even ifthat particular person is not tortured or assassinated, or if those factscannot be proven in a concrete case.” 95In the Street Children case, the Court also referred to the abovementionedstatement by the Human Rights Committee regarding protection against the arbitrarydeprivation of life, emphasizing “the particular gravity” of the case, which involved theabduction, torture and killing of several children and which also violated the State’s“obligation to adopt special measures of protection and assistance for the childrenwithin its jurisdiction”. 9691 General Comment No. 6 (art. 6), in United Nations Compilation of General Comments, p. 115, para. 3.92 Ibid., p. 115, para. 4.93 Communication No. 687/1996, Rojas García v. Colombia (Views adopted on 3 April 2001) in UN doc. GAOR, A/56/40 (vol. II),p. 54, para. 12, and Communication No. 821/1998, Chongwe v. Zambia (Views adopted on 25 October 2000), p. 143, para. 7.94 I-A Court HR, Velásquez Rodríguez Case, judgment of July 29, 1988, Series C, No. 4, p. 155, para. 174.95 Ibid., p. 155, para. 175.96 I-A Court HR, Villagrán Morales et al. Case (the “Street Children” case), judgment of November 19, 1999, Series C, No. 63, pp. 170-171,paras. 145-146.Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers 781
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