General Comments of the United States on Basic Principles and Guideline on the Right to A Remedy for Victims of Violations of International Human Rights and Humanitarian Law

By Gilda Brancato,
Attorney-Adviser International
Office of the Legal Adviser
Human Rights and Refugees
U.S. Department of State
Washington, D.C.

U.N. Doc. As Revised August 15, 2003 As Delivered.

The United States joins the chorus of delegations in congratulating the Chairperson-Special Rapporteur on his re-election and expresses appreciation for the extensive efforts that have gone into creating the draft "Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violation of International Human Rights Law" (hereinafter "Principles"). We continue to support the efforts of the United Nations Commission on Human Rights to clarify issues in this important area, and thank the Commission for its ongoing efforts. We also believe that Professors van Boven and Bassiouni and the Chairperson-Special Rapporteur have made valuable contributions. We also appreciate efforts to incorporate our earlier comments and accommodate our concerns in various drafts, for example in the Explanatory Comments to the Principles. In an effort to advance the development of the concepts in this document, and with a view to the desirability of consensus adoption and widespread implementation of an instrument whose provisions would be relevant to widely differing domestic legal systems, the United States provides the following general comments and observations.

General Comments

As a preliminary matter, the Principles and Guidelines identified in the document should be properly characterized as aspirational - a non-binding standard of achievement -not as a statement of existing law. The new preambular paragraph 8 is helpful in clarifying this intent and the scope of the Principles, which were just affirmed by Prof. van Boven. However, certain provisions of the document, as drafted, continue to take a categorical approach to the "right to a remedy" as if there is general consensus that these "Guidelines and Principles" constitute customary international law or are an authoritative statement of existing legal obligations. Like other Governments, the United States does not believe this approach is warranted
by the general state of international law. Many of these concepts have no basis in custom or in treaty law; indeed, state practice is at times in direct conflict with these
Principles.

The title of this document properly identifies its content as including "Principles and Guidelines" on the right to a remedy. At its essence, the document is designed to set benchmarks that are desirable and realistic for States to achieve in implementation of existing human rights obligations and in accordance with their own constitutional and domestic legal framework. As is widely recognized here today, the Principles and Guidelines do not and cannot create legal obligations and, therefore, they should not be drafted or interpreted as if they do. As an example, Principle 5 would need to be revised to reflect its applicability only where States have voluntarily undertaken legal obligations (customarily by treaty) to (1) assert universal or quasi-universal jurisdiction over a specified crime; (2) facilitate extradition or surrender of offenders; or (3) provide other forms of cooperation in the pursuit of international justice. We believe that support for this point with respect to Principles 4 and 5 was voiced in the Conclusions of the Chairperson-Special Rapporteur in his Report on the 2002 Consultative Meeting.

To ensure that the phrasing of the Principles is consistent with their intent and objective, they should not contain words of binding legal obligation (such as "shall"), which are beyond the mandate of the exercise and create confusion and potential discord with respect to their intended meaning. Consistent use of the word wshould" would be a more accurate reflection of their status. Lack of clarity on this issue would only serve to diminish the prospect for widespread acceptance of the instrument.

Second, the United States Government reiterates its firm belief, expressed at earlier stages of review and discussion, that the Principles should not address International Humanitarian Law. By attempting to address both human rights and international humanitarian law PIHL"), the Principles create conflict in a well-developed area of law conceptually distinct from international human fights law. It is true that many of the principles of humane treatment found in the law of armed conflict find similar expression in human rights law. The well-renowned scholar Jean Pictet, in a treatise on international humanitarian law (cited below, at page 15), stated that:

"Indeed, the law of conflicts and human rights have the same origin: they stem from the need to protect the individual against those who would crush him.
" Nevertheless, the two systems are quite distinct. Professor Theodor Meron, currently the President of the International Criminal Tribunal for the Former Yugoslavia in The Hague, has written:

Not surprisingly, it has become common in some quarters to conflate human rights and. the law of war/international humanitarian law. Nevertheless, despite the growing convergence of various protective trends, significant differences remain. Unlike human rights law, the law of war allows, or at least tolerates, the killing and wounding of innocent human beings not directly participating in an armed conflict, such as civilian victims of lawful collateral damage. It also permits certain deprivations of personal freedom without convictions in a court of law.
Theodore Meron, The Humanization of Humanitarian Law, 94 A.J.I.L. 239, 240 (2002).

Further as Jean Pictet similarly observed, "Some writers on human rights thought I was trying to merge human rights and the law of armed conflicts. It would have been absurd to do so.... What is important is to recognize that the two fields are interrelated and, conversely, that they distinct and should remain so. ...[T]he two legal systems are fundamentally different, for humanitarian law is valid only in the case of an armed conflict while human rights are essentially applicable in peacetime and contain derogation clauses in case of conflict. Moreover, human rights governs relations between the State and its own nationals, the law of war those between the State and enemy nationals."

"There are also profound differences in the degree of maturity of the instruments and in the procedures for their implementation. The Geneva Conventions are universal and of a mandatory nature. This is certainly not the case with human rights instruments. The systems of supervision and sanctions are also different. Thus the two systems are complementary, and indeed they' complement one another admirably, but they must remain distinct, if only for the &ake of expediency." J.. Pictet, Humanitarian Law and the Protection of War Victims pages 14-15 (1975) (emphasis in original).

As a further example of the distinction between the two bodies of law, through international conventions (notably the Geneva Conventions of 1949) and customary international law, international humanitarian law already recognizes various remedies for transgressions, particularly in the context of international armed conflict and regarding state responsibility. Indeed IHL imposes binding legal obligations on States with respect to criminal sanctions, the duty to search for offenders of certain violations, and compensation, which was recognized as an obligation as early as the Fourth Hague Convention of 1907. We are concerned that these non-binding Principles being developed in this forum would be confusing when placed alongside binding international obligations that States Parties to IHL conventions have already undertaken for international armed conflict. (The story differs, of course, for non-international armed conflict, an important point not adequately addressed in the current document). For example each of the four 1949 Conventions has four articles on sanctions. States Parties undertake therein to take legislative measures "to provide effective penal sanctions for persons committing, or ordering to be committed, grave breaches ...defined in the following article." States Parties have also undertaken the legal obligation to search for the guilty parties and to bring such parties before their own courts or to extradite them.

Additionally, remedies required for a grave breach of the Geneva Conventions are markedly different than those required by a minor breach. These differences of degree have important remedial consequences under IHL, an issue not expressly addressed in the Principles. Accordingly, to avoid creating conflict and ambiguity in an already well-developed area of law, we again recommend that the Principles address human rights law, but not IHL.

Additionally and more fundamentally, the mandate of the Human Rights Commission does not extend to the laws of war and interpretation and implementation of international humanitarian law instruments such as the Geneva Conventions of 1949. The United States strongly opposes the adoption of an instrument, even if non-binding, that would address issues largely outside the jurisdiction and competence of the Commission.

At a minimum, references to humanitarian law principles and norms in the document should be set aside for possible consideration by States at a later date. Such a staged approach would allow States to focus their views on the human rights principles that are at the core of the instrument. This focus would in all likelihood increase the prospects for early consensus on the subject. A staged approach would also permit needed study of the appropriateness of adoption of an instrument containing^ international humanitarian law principles under the auspices of the Human Rights Commission or another venue such as the ICRC.

Third, the United States Government believes that the Principles would be more effective if they focused on remedies such as access to justice rather than reparations and restitution. While it is appropriate and constructive to discuss or even recommend the potential forms and modalities of reparation, restitution, apology, tribute, and satisfaction, such forms and modalities are peculiarly shaped by the structure and provisions of domestic law. They may also implicate such sovereign decisions as the modalities and processes of truth and reconciliation commissions. It is therefore recommended that a conceptual distinction be maintained between providing reparations and access to a remedy, with emphasis placed on the latter.
Fourth, the Principles speak in terms of States' ^obligations" with regard to, inter alia, enforcing international human rights law norms (Principle 1), ensuring consistency between their international legal obligations and domestic law (Principle 2) and providing alleged victims of violations with a remedy such as reparation (e.g. Principles 16 and 21). This language neglects to indicate, that, to the extent a State has undertaken legal obligations, it is generally with regard to human rights violations occurring within its territory and subject to its jurisdiction. International law does not obligate a State to provide, e.g., access to a remedy for a human rights violation that occurred outside the jurisdiction of the State. Nor does it obligate a State to provide access to a remedy for human rights violations committed by other States. A State may choose to provide such access, but it does not have a legal obligation to do so. This should be made clear in the document.

Fifth, we are concerned that the Principles do not make clear they are not intended to affect principles of state responsibility and diplomatic protection. All efforts should be made to preserve the distinction between these two areas of law and human rights law.

The United States Government holds additional general views that are formed by the desire to allow consensus adoption and widespread implementation of an instrument whose provisions would be relevant in widely differing domestic-legal systems. These views include, sixth, support for the Guidelines to cover gross or grave violations of human rights, as suggested in the authorizing resolutions of the Commission on Human Rights on the right to a remedy (e.g. 2003/34, 2002/44, 2000/41, 1999/33, 1998/43). Explanatory Comment 2 to the Principles is very helpful in adopting this approach, but we strongly recommend that this distinction be expressed in the operative text of the Principles and not just in the comment at the end of the document. Indeed, the Chairperson-Special Rapportuer's Report of the 2002 Consultative Meeting indicated that both the Chair and Professor van Boven suggested that the title of the document include the word "Gross Violations." Seventh, the United States supports recognition that the Guidelines should cover State actors and hot be expanded to cover injury by private individuals who do not act with the authorization, acquiescence or ratification of the State.
We thank the Chair for permitting us the time to make this statement and will make additional comments during the article-by-article discussion of the Principles.