Published in July 2018.
This module is a resource for lecturers
International and regional human rights instruments
For victims of terrorism who wish to pursue an action, human rights mechanisms offer several advantages. In contrast to seeking justice before an international or national criminal court or, to a lesser degree, a truth commission, the victim can bring a specific action, related directly and solely to their own case, on their own terms, and at a time that suits them. The achievement of justice for the victim is not, therefore, peripheral to the determination of any broader criminal charges, but instead forms the substance of the action.
That said, however, human rights mechanisms also have several disadvantages for victims, including their lack of enforcement measures in relation to any proven failings on the part of a State. In addition, human rights mechanisms lack any in-State investigative body which might be able to furnish the answers needed by many victims, and while Courts are typically able to demand that a respondent State provides documents, the lack of any in-State presence means that it is also unable to verify whether or not a State has fully disclosed all relevant materials (see e.g. Janowiec v. Russia, 2013, paras. 100-101). In addition, article 38 of the European Convention on Human Rights (ECHR) requires parties to "furnish all necessary facilities" to enable a full investigation of the petition by the Court). Finally, human rights actions tend to concern individual victims, and so they may fail to provide the kind of broader or societal benefit required in the aftermath of a significant terrorist attack.
Minimum standards for the fair treatment of victims according to basic principles of justice*
* United Nations, General Assembly (1985). United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power . 29 November. A/RES/40/34. Paras. 4-17.
See also: United Nations, General Assembly (2006). 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 . 21 March. A/RES/60/147 (2006). (Sects. VI-X.)
There are some common underpinning principles across international and regional human rights instruments which are mentioned briefly here.
These concern positive obligations which require that States adopt reasonable measures to prevent violations and to investigate, prosecute, punish, and provide reparation when serious human rights abuses arise. This is well recognized by international courts and bodies as arising under all general human rights treaties (see e.g. Osman v. UK, 1998, para. 116; A v. UK, 1998, para. 22; Z and others v. UK, 2001, para. 73). The obligation extends to not only foreign State actors, but also non-State actors including terrorist groups. This is reflected in United Nations Human Rights Committee General Comment No. 31 (CCPR/C/21/Rev.1/Add. 13) regarding the nature of the general legal obligation imposed on States parties to the Covenant:
[T]he positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities. There may be circumstances in which a failure to ensure Covenant rights as required by article 2 would give rise to violations by States Parties of those rights, because of States Parties' permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities. (Para 8).
In parallel, States have other duties, such as to exercise due diligence - obligations existing in customary international as well as treaty law - to prevent the (re)occurrence of such violations in the first place, especially if there is a significant risk of such unlawful practices occurring or putting an end to them as soon as they become known. The approach of the European Court of Human Rights (ECtHR) with respect to the principle of prevention has been to determine whether "the authorities knew or ought to have known at the time of the existence of a real and immediate risk … from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk" ( Osman v. UK, 1998, para. 116; Kaya v. Turkey, 1998).
Furthermore, as part of a State's human rights law obligations to protect human rights, where serious violations arise, a thorough investigation should be undertaken which, if appropriate, leads to the prosecution of the perpetrators ( Barrios v. Altos v. Peru, 2001). (For an analysis of the duty to prosecute and its limits see Guariglia, 2001). The scope of the investigation, and potentially the prosecution's policy, should include the immediate perpetrators of the crimes and, in some instances, any architects of such violations such as terrorist group leaders. Where any failings on the part of a State exist, then any cases involving higher level officials may further assist victims in understanding the broader story and generally contribute to clarifying the historical narrative (Akaban, 1998).
The duty of "thorough, independent and effective investigation" is an inherent aspect of the positive obligations in general human rights treaties obligations to protect and ensure the rights in the conventions ( Velasquez Rodriques v. Honduras, 1988; Assanidze v. Georgia, 2004; Isayeva, Yusupova and Bazayeva v. Russia, 2005, paras. 209-213). This duty has been held to apply in security sensitive circumstances, including in situations of armed conflict ( Isayeva, Yusupova and Bazayeva v. Russia, 2005, paras. 208-213; Economic and Social Council, Commission on Human Rights report 2006/53, pp. 1125-1126). Military and civilian superiors are also obliged to punish subordinates for crimes they know or have reason to know the subordinates have committed in the past. A superior can sufficiently discharge this obligation by reporting breaches of international humanitarian law to a competent authority for investigation and prosecution (Mettaux, 2009).
More specifically, in relation to the legal rights of victims, these should reflect three primary components: the right to know (the truth of, e.g., what happened and why), the right to justice (and prevention of impunity of those culpable), and the right to reparations (see Economic and Social Council, Commission on Human Rights reports CN.4/Sub.2/1997/20 and E/CN.4/Sub.2/1997/20/Rev.1). The fulfilment of such rights can also assist with keeping alive the memory of victims of terrorist attacks which can often be a struggle to achieve in practice (Bottigliero, 2012, p. 912).