Published in July 2018.
This module is a resource for lecturers
International and regional instruments governing victims of terrorism
Numerous international declarations reaffirm the duty of States to provide a remedy for victims of human rights abuses and violations of international humanitarian law. (See e.g. General Assembly resolution 217/A, article 8; General Assembly resolution 30/3452, Annex, article 11). A comprehensive articulation of this duty is found in the Declaration of Basic Principles (General Assembly resolution 30/3452, Annex). The Declaration is the most comprehensive instrument on justice for victims. It provides guidance on measures that should be taken at the national, regional and international levels to improve access to justice and fair treatment, restitution, compensation, protection and assistance for victims of crime and abuse of power. In adopting the Declaration, the General Assembly called upon Member States to take the necessary steps to give effect to the provisions of the Declaration. In its resolution 2005/20 of 2005 (ECOSOC Resolution 2005/20), the Economic and Social Council adopted the Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime.
Responding to the needs of victims of terrorist acts
To respond to the needs of victims of terrorist acts, measures should be in place to provide the following:
Furthermore, in April 2005, the Commission on Human Rights took note of the revised Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity (E/CN.4/2005/102/Add.1). That set of principles includes the right to know, the right to justice, the right to reparation and guarantees of non-recurrence, which form integral aspects of securing justice for victims.
These instruments, together with other developments, such as the inclusion of victims' rights to reparations and participation in the Rome Statute, highlight the increasing centrality of victims in the criminal justice system and, by extension, the response of that system to terrorism. It is important to emphasize that while victims of terrorist activities were perhaps not foreseen - or at least not expressly mentioned - in human rights instruments, to the extent that terrorism, as an attack on civilians, is an affront to the human rights of the victims, those victims have the rights enumerated in the relevant treaties.
Indeed, some instruments have been adopted which specifically seek to address the specific need of victims of terrorism, such as the Council of Europe's Guidelines on the Protection of Victims of Terrorist Acts (2005), which demand, at Section VI (2), that "States should ensure that the position of victims of terrorist acts is adequately recognised in criminal proceedings". The Guidelines emphasize the importance of access to the law and to justice being effective, such as through enabling victims to access competent courts to bring a civil action in support of their rights, as well as the provision of financial assistance to do so where needed in the form of legal aid (Section V). Where appropriate, "States must ensure the protection and security of victims of terrorist acts and should take measures, where appropriate, to protect their identity, in particular where they intervene as witnesses" (Section IX(2)) (General Assembly report 15/33).
Yet, for these positive developments, some would argue that an important weakness in the existing international framework remains, namely the absence of any coherent or comprehensive international treaty that specifically governs issues relating to victims of terrorist crimes. One explanation for this may be linked to the absence of universal agreement regarding the definition of terrorism, leaving States unwilling to develop a binding instrument on 'victims of terrorism'. Whether or not a designated treaty is needed, as well as whether or not the needs of victims are adequately covered by existing international treaties, remain topics of debate.
That said, there is no shortage of existing agreed norms on the criminal elements of terrorism related crimes and definitions of 'victim' to not develop such a binding instrument along similar terms as the universal anti-terrorism conventions which generally do not include definitions of terrorism. For example, within the European region, in addition to the 2005 Guidelines on the Protection of Victims of Terrorist Acts, the Council of Europe has a binding treaty instrument for victims of crime - the European Convention on the Compensation of Victims of Violent Crimes (adopted 24 November 1983, entered into force 1 February 1988) - which could be drawn upon in terms of key norms and approaches. Under this Convention, State parties have the obligation to compensate the victims of intentional and violent offences resulting in bodily injury or death committed on their territory regardless of victims' nationality. This binding treaty is supplemented by non-binding, but nonetheless influential instruments, such as the Council of Europe , Recommendation Rec(2006)8 of the Committee of Ministers to Member States on Assistance to Crime Victims (adopted14 June 2006) which articulates key principles such as regarding the protection of victims' human rights and dignity, assistance, support, information and access to remedies. Similarly, the EU Directive 2012/29/EU: establishing minimum standards on the rights, support and protection of victims of crime. Furthermore, several international principles already exist for the reparation of victims of both ordinary and serious crimes, which could similarly inform an international framework (Economic and Social Council, Commission on Human Rights report 2000/62; Economic and Social Council, Commission on Human Rights reports 1997/20 and 1997/20/Rev.1), including those developed in the Rome Statute regarding the redress of and participation by victims within the International Criminal Court.
Notably, much of the existing framework approaches the compensation, reparation and so forth of victims of terrorism as a criminal remedy within the criminal justice system which is primarily concerned with apprehending, prosecuting and punishing terrorists i.e. 'making terrorists pay'. In contrast, civil remedies do not have any accompanying counter-terrorism objectives such as prevention, deterrence or punitive function, encompassing instead all non-forcible, non-criminal means of sanctioning terrorists and States who support terrorists. The legal framework governing civil recovery against terrorists is even less developed than the parallel criminal justice one. In part, this is reflective of ongoing debates regarding the function of civil remedies for victims of terrorism, including what civil remedies are and should be available, as well as what wider objectives the recognition and enforcement of civil remedies against terrorism serve together with what national government institutions are most appropriate for creating and enforcing such remedies (Hongiu Koh, 2016). There is also an underlying policy debate regarding how best to promote traditional tort law and public international law objectives without raising undue judicial competence and separation of powers concerns (Hongiu Koh, 2016). In some jurisdictions, such as Spain, the State prosecutor has discretion as to whether to pursue civil liability for victims of terrorism through criminal trial or civil litigation routes (Halsell, 2016).
To strengthen national approaches to support and protect victims of terrorist acts
Several United Nations tools exist to assist States in strengthening their national approaches - through the identification of relevant existing international norms and standards as well as national legislation, to better support and protect victims of terrorism. These include:
Individual criminal responsibility
Individual criminal responsibility can arise too in an armed conflict setting, such as in relation to the commission of torture which is equally prohibited in that context including under customary international law. Whether conduct amounts to a war crime will principally depend on the context in which the detainee was arrested and detained, in addition to the requisite mental element. The same acts, with the requisite mental element, could also amount to crimes against humanity if committed as part of a widespread or systematic attack directed against a civilian population. (See ICTY Prosecutor v. Kordić, Mario Cerkez, 2004, para. 93; Prosecutor v. Tihomir Blaškić, 2004, para. 102; Prosecutor v. Dragoljub Kunarac et al., 2002, para. 85). (See further Module 4).
In accordance with forms of responsibility recognized in international law, an individual may be responsible for directly committing crimes, individually, jointly, and through other persons (Rome Statute, article 25(3)(a)), or an individual may be responsible for indirectly participating in the commission of crimes (Rome Statute, article 25(3)(b)), including by ordering or aiding and abetting. (See Pejic, 2012, Ch. 7, for a discussion of individual criminal responsibility arising during armed conflict; and Rastan and Bekou, 2012, Ch. 32, for a survey of international criminal law principles and related jurisprudence). In addition, superiors, whether civilian or military, may also be held responsible under the doctrine of superior responsibility if they fail to prevent or punish the criminal acts of subordinates over whom they have effective control (Duffy, 2009).
International and regional framework/restitution and guarantees of non-recurrence
The Basic Principles and Guidelines for Victims affirm the right to restitution. In particular, principle 19 specifies that a State:
[S]hould, whenever possible, restore the victim to the original situation before the gross violations of international human rights law… occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one's place of residence, restoration of employment and return of property.
Notably, some, including those directly involved in advocating for women's rights, believe that restitution - putting the survivor back in to the position they were in prior to the abuse - is not an appropriate remedy where the victim's prior situation had effectively rendered them vulnerable to abuse in the first place ( Nairobi Declaration 2007). It is argued that inequalities which produced a susceptibility to violence are also the same factors affecting access to justice and healthcare in the aftermath of abuse, and thus, addressing those underlying vulnerabilities and inequalities should also form a component of any reparative process. Such a process would need to consider not only justice at the individual level, but also seek to address underlying causation, and hence also provide a form of justice at the societal level, and would therefore require State engagement and participation.
Beyond restitution, it includes compensation for non-pecuniary damage flowing from the breach ( E and others v. UK, 2002, para. 110; Keenan v. UK, 2001, para. 130). Critically, the right to reparation includes the obligation to investigate and prosecute those responsible as explained here ( Keenan v. UK, 2001, para. 132). Article 13 has been held to imply obligations to investigate in, inter alia, cases of violation of the right to life, Kaya v. Turkey, 1998; torture and inhuman and degrading treatment, Aksoy v. Turkey December 1996; disappearance in breach of Article 5, Orhan v. Turkey, 2002; and destruction of homes and properties in violation of article 8, Mentes v. Turkey, 1997. In parallel with any financial restitution, every effort should be made by States "to ensure that necessary legal reforms to avoid repeat cases of breaches of due process are also implemented in a timely fashion and seen as an essential element of the guarantee of non-recurrence". Often victims are strongly motivated to seek justice for non-financial outcomes, in the form of such guarantees as well as a formal apology (General Assembly, Human Rights Council report 34/30, para. 54).