protection and redress for victims of crime and human rights violations

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Chapter 15 • Protection and Redress for Victims of Crime and Human Rights Violationseffectively excludes in a number of cases the possibility of investigationinto past human rights abuses and thereby prevents the State party fromdischarging its responsibility to provide effective remedies to the victims ofthose abuses. Moreover, the Committee is concerned that, in adopting thislaw, the State party has contributed to an atmosphere of impunity whichmay undermine the democratic order and give rise to further grave humanrights violations.” 192With regard to Argentina, the Committee expressed concern “at theatmosphere of impunity for those responsible for gross human rights violations undermilitary rule”. Noting that many persons covered by the Argentine amnesty lawscontinued “to serve in the military or in public office, with some having enjoyedpromotions on the ensuing years”, the Committee recommended that:“Gross violations of civil and political rights during military rule should beprosecutable for as long as necessary, with applicability as far back in timeas necessary, to bring to justice their perpetrators. The Committeerecommends that rigorous efforts continue to be made in this area, andthat measures be taken to ensure that persons involved in gross humanrights violations are removed from military or public service”. 193The Committee also expressed concern about the Croatian Amnesty Law.Although this law does not grant amnesty to those guilty of war crimes, it fails to definesuch crimes. The Committee therefore recommended that the State party “shouldensure that in practice the Amnesty Law is not applied or utilized for granting impunityto persons accused of serious human rights violations”. 194*****The Committee against Torture expressed concern about the continuingexistence in Guatemala“of impunity for offences in general and for human rights violations inparticular, as a result of repeated dereliction of duty by the governmentbodies responsible for preventing, investigating and punishing suchoffences. Impunity exists for most of the violations committed during theinternal armed conflict and those committed after the Peace Agreementswere signed.” 195In order to improve the situation, the Committee made variousrecommendations to the State party involving, inter alia, the strengthening of theautonomy and independence of the judiciary and the Public Prosecutor’s Office andthe prohibition of involvement of the army in public security and crime prevention. 196*****192 Communication No. 322/1988, H Rodríguez v. Uruguay (Views adopted on 19 July 1994), in UN doc. GAOR, A/49/40(vol. II), p. 10, para. 12.4.193 UN doc. GAOR, A/56/40 (vol. I), p. 39, para. 9.194 Ibid., p. 67, para. 11.195 UN doc. GAOR, A/56/44, p. 33, para. 73(b).196 Ibid, see pp. 34-35, paras. 74-76.806 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 ViolationsThe Committee on the Elimination of Racial Discrimination noted the effortsmade by Rwanda “to prevent impunity for perpetrators of genocide and other humanrights violations and to bring those most responsible for such acts to justice”. TheCommittee remained concerned, however, that impunity prevailed in the country“notably in some cases involving unlawful acts committed by members of the securityforces”. It therefore urged the State party “to make additional efforts to respondadequately to and prevent unlawful acts committed by members of the military orcivilian authorities”. 197 *****It is further clear from regional jurisprudence that impunity cannot beallowed for human rights violations committed by private persons. The duty ofStates to investigate, prosecute, punish and redress human rights violations alsoextends to violations committed by private persons, at least whenever the Governmentconcerned knew or should have known about the unlawful acts.The Inter-American Court of Human Rights has thus made it clear that a Stateparty to the American Convention on Human Rights “is obligated to investigate everysituation involving a violation of the rights protected by the Convention” and that,when it does not do so, “the State has failed to comply with its duty to ensure the freeand full exercise of those rights to the persons within its jurisdiction”. In the Court’sview,“The same is true when the State allows private persons or groups to actfreely and with impunity to the detriment of the rights recognized by theConvention.” 198The abovementioned case of Mahmut Kaya v. Turkey shows that the EuropeanCourt of Human Rights may hold Governments responsible for human rightsviolations committed by private persons, at least to the extent that the authorities wereaware of such acts or “ought to have been aware of the possibility” that such acts mightbe carried out by persons or groups of persons “acting with the knowledge oracquiescence of elements in the security forces”. 199*****As may be seen from these selected cases and statements, impunity for seriousviolations of human rights such as arbitrary killings, abduction, disappearances, tortureand other forms of inhuman treatment is strictly illegal under international humanrights law. This chapter has made it clear that States have a legal duty effectively toensure the protection of everyone’s human rights including, in particular, the right tolife and liberty and to security. States that fail to comply with this duty at the domesticlevel may have to assume international responsibility before the internationalmonitoring bodies.197 UN doc. GAOR, A/55/18, p. 32, paras. 141 and 144.198 I-A Court HR, Velásquez Rodríguez Case, judgment of July 29, 1989, Series C, No. 4, pp. 155-156, para. 176.199 Eur. Court HR, Case of Mahmut Kaya v. Turkey, judgment of 28 March 2000, para. 91 of the text as published at http://echr.coe.intHuman Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers 807
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