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Is a Right Without Remedy a Right at All?

Written by Nina on . Posted in Blog



Introduction

The necessity of existence of remedies and compensation for victims of gross violations of International Humanitarian Law proves the fact that it has never been limited only by regulating relationship between countries. Nevertheless, isn’t there a big difference between recognizing these rights and having the right to claim them?

Here the issue is that the punishment for individuals for war crimes has acquired much more attention than the compensation for the victims of these crimes.  Citing English lawyer and Judge Alfred Thomson, known as Lord Denning, let’s ask the question “Is a right without remedy a right at all”? Otherwise, if there are no compensations for the violations of human rights, what is the purpose and sense of their protection? Well, the punishment of criminals raises the sense of fairness of victims. But how about the human losses they have had? And what is the extent for measuring the value of violated rights to be able to compensate them?

Who is a Victim?

The International Committee of Red Cross defines a victim as the one whose primary rights have been violated. It is necessary to define “the victim” before selecting between the remedies’ issue.  Nevertheless, in the Geneva Convention and other international documents “war victims” are defined as “the ones who suffer cause of being affected by an armed conflict”. 

Though the definition does not refer that the victims have the right to peace under IHL, but this still does not mean that war victims are left without the right to claim protection.

For Compensation there is a need of violation of a right, which means that the right to a remedy is not a primary right. It is a secondary right which is supposed to protect the primary human right from violations.

As remedies for gross violations of International Human Rights Law and serious violations of International Humanitarian Law UN General Assembly Resolution foresees the victim’s right to:

o   Equal and effective access to justice;

o   Adequate, effective and prompt reparation for harm suffered;

o   Access to relevant information concerning violations and reparation mechanisms. 

Restitution in Human Rights’ Context

The issue under this topic is the transfer of International Law Commission articles’ applicability from state-state relations into state individual relations.

The first answer to the statement is in the Article 33 which indicates that even if the Articles concern the responsibilities owed towards other states, they are to “any right, arising from the international responsibility of a State, which may arise directly to any person or entity other than State”.

To conclude, the assessment of level of remedies for violations of International Humanitarian Law and international Human Rights Law supposes the obligation of interruption of a wrongful act and a duty to make full reparation for damages. The reparation shall improve the consequences of the wrongful act and recover the situation. And under International Law, restitution is the preferred remedy.

The other issue that has been discussed is the necessity to transform interstate relations into individual-state relations. Otherwise, there must be assessment of state responsibility for wrongful acts to legal relationships between states and individuals and the main beneficiaries in this context are individuals. Here, there is only a certain extent of reflection of international human rights. Even if international human rights bodies have all accepted the importance of existence of restitution as a remedy, they have not clarified it as a preferred one. This can be justified with the fact that not all the consequences of human rights violations can be restituted.

So on the one hand an individual can get restitution as a remedy at the international level, but on the other hand, he has no right to it, since the international human rights bodies have discretion in deciding whether to award reparation or not. However, it is essential to consider the international standards on reparation rights of victims, which must also impact on national and international experience.

AsatryanHripsime



References***

·        LIESBETH ZEGVELD International Committee of the Red Cross

“Remedies for Victims of Violations of International Humanitarian Law”

·        Legal Information Institution of Cornel University https://www.law.cornell.edu/wex/remedy

·        Hague Convention of 190

http://www.opbw.org/int_inst/sec_docs/1907HC-TEXT.pdf

·        General Assembly resolution 60/147 of 16 December 2005 on Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law

·        Christine D. Gray “Judicial Remedies in International Law

Statement on torture, degrading and inhuman treatment

Written by Ani Karapetyan on . Posted in TopStories

Hrachya
To the RA Minister of Justice A. Hovhannisyan,

RA Prosecutor General G. Kostanyan,

Head of the Department of Penitentiary Institutions

at the RA Ministry of Justice A. Osikyan,

Human Rights Defender A. Tatoyan.

                                                  Statement on torture, degrading and inhuman treatment

Nubarashen Penitentiary Institution’s inmate Hrachya Gevorgyan’s mother Nakhshoun Yengibaryan applied to the Helsinki Association for Human Rights and informed that her son gained many life-threatening diseases upon being jailed in Nubarashen Penitentiary Institution: acute chronic bronchitis, hepatitis C, Parkinson's disease, etc. He hasn’t received adequate treatment in the penitentiary as a result the inmate’s health is in critical condition. He is not able to move on his own, speak or use the toilet without anyone’s help, etc.

Hrachya Gevorgyan announced a hunger strike in protest. We have informed the RA Human Rights Defender’s office and the Group of Public Observers Conducting Public Monitoring of Penitentiary Institutions and Bodies of the Ministry of Justice.

During the visit of the observers the prison’s administration transferred the other prisoner of the same cell who was helping Gevorgyan. As a result Gevorgyan was left helpless.

H. Gevorgyan was arrested in the Court of the first Instance in 2011. The trial lasted for 4 years and 3 months, and since the hearing in the Court of Appeal on February 1, 2016 the court hearings have been delayed because of Gevorgyan’s health condition.

Helsinki Association evaluates the treatment against Hrachya Gevorgyan as torture, inhuman treatment and humiliation of dignity. We appeal to all the above mentioned individuals to take measures within their jurisdiction and immediately halt the torture, inhuman treatment and humiliation of dignity

Women = Men

Written by Ani Karapetyan on . Posted in Blog

The concept of freedom is considered to be equal with the concept of equality. If to count that equality supposes similar attitude towards civil and political rights and responsibilities, doesn’t it include the right to have equal access for social utilities? In this context, let’s define social utilities as all the material and spiritual goods produced by society.

Though it is relative to our biological origins to generalize and we accept the differences between the sexes, does it mean that one is less than the other or one has to get less opportunities then the other?  

The equality of rights and responsibilities for people requires equal conditions to exercise them. For this, the equality of women and men in all social, professional and political spheres is necessary. The comparison and assessment of men’s and women’s requirements shall be considered. The Committee Regulating the Issues Concerning Men and Women Equality organized a seminar about “Consolidation of legal equality: Common Issue for Men and Women” in 1997, where the topic of discussion was the achievement of real partnership between men and women and the equality as a factor for the positive development of men’s roles and of society.

Feminist movements, such as achieving the right to vote in the 1920's, and the hitch for equality in the labor market and education system in the 1970's, brought to light, more than ever, the inequalities of the sexes. These movements brought attention to basic human rights; that politics, education, and employment should be equally accessible to the both sexes. But as women moved into the workforce, they found that to be successful in their career, they would have to model male behavior.

The division of roles between men and women must really be organized by creation of social conditions, which will give women more opportunities to participate to social and political life. Meanwhile, there must be “gender equality” propaganda by education and social media.

The increase of level of legal awareness of women is very essential as an impact to the confirmation of gender equality.

In Plato’s “The Republic”, gender equality within society is explored. ... Plato promotes a specialization of employment and status based on innate ability, rather than gender. ... However, the society Plato described only gains this measure of gender equality through elitism.

“The United States, in theory, tries to uphold principles of gender equality, yet does not do so, as demonstrated in the US army. Nations should not base employment opportunities nor confine the likelihood of advancement based on gender”.

Hripsime Asatryan 

Right to Death

Written by Gayane Khachatryan on . Posted in Blog

The right to die is the ethical or institutional entitlement of the individual to commit suicide or to undergo voluntary euthanasia. Possession of this right is often understood to mean that a person with a terminal illness should be allowed to commit suicide or assisted suicide or to decline life-prolonging treatment, where a disease would otherwise prolong their suffering to an identical result. The right to die is sometimes associated with the idea that your body and your life are your own, to dispose of as you see fit. However, a legitimate state interest in preventing irrational suicides is sometimes argued.

Right to Live

Written by Gayane Khachatryan on . Posted in Blog

For centuries, human community has asked itself about:
What do the human rights represent?
What is the most essential element of human rights?
What is the extent to measure the valuableness of life?
All these questions refer to one:
Is the ideology and concept of human rights with all its elements still valuable where there is no right to life?

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This web-site creation was made possible by the support of Counterpart International’s Civil Society and Local Government Support Program and the generous support of the American people through the United States Agency for International through “Helsinki Associaiton”. Content, views and opinions expressed herein are those of the author(s), and the responsibility of Helsinki Association and do not necessarily reflect the views of Counterpart Armenia, USAID or the United States Government.”