Is a Right Without Remedy a Right at All?

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