Wednesday, December 7, 2011

हिंसा मोहबाट होसियार

:
अचेलका युवाहरु माझ हिंसा अतिप्रिय भएको छ. हामीले हिंसाको संस्कार बसाली सक्यौं. दुइ दिन अघि प्रधानमन्त्रीलाइ बिरोध जनाउन त्रिभुवन बिमान स्थल गएका युवाले निर्दोष सवारी साधनलाई तोडफोड गरे, आगो लगाए. पर्सी पल्ट चितवन झ्यालखानमा रहेका कैदी बन्दीले आपसमा दुर्दान्त हिंसा मच्चाए. समाचारहरु पनि आङ सिरिंग पार्ने खालका सुनिन्छ. कतै घांटी रेटेर, कतै घनले हिर्काएर मानिसलाई मारिएको छ. एउटा टेलिभिजनमा एकजना तन्नेरीले फलाना फलानालाइ हामी मार्छौं भनेर हाका हाक्की बोले. संचारले पनि सामान्य मर्यादा बिर्सेर त्यस्ता अभिव्यक्तिलाइ प्रसारण गरिदियो. उनले कालो मास्क लगाएर बोले. प्रेस  काउन्सिल , पत्रकार महासंघ, संचार मन्त्रालय सबै छन. तर सबै श्री तीन महाराज जस्ता भएका छन. लिखित उजुरी, बिन्ती नपरी कोहि तात्दैन. नेताले खुलेआम हिँसा को पक्षमा बोल्छन. त्यसरी बोल्न हुन्न भन्ने हरु पनि छन. तर " जेठा मामा त भाङ्ग्रा को धोती, कान्छा मामा को  के गति?" भने जस्तो भयो हाम्रो देश. देश त सबैको बराबरी हो. अचेल जे बिग्रे पनि पुलिस र नागरीक समाज लाइ धारे हात लगाउने चलन छ. पुलिस आदेशमा चल्छ, नागरीक समाज जहाँ तहीं रुन्छ, भुक्छ.
हाम्रो भावी पुस्तालाई कतै हामी हिँसा ग्रस्त समाज त बुझाउंदै छैनौं? हिंसाको संस्कार बस्यो भने मुक्त हुन पुस्तौं लाग्न सक्छ. चित्त नबुझेकाले निर्धक्क बोल्ने र तिनको बाणी लाइ तत्कालै सार्थक रुपमा सुन्ने संस्कार बसालौं.
सुबोधराज प्याकुरेल.

Thursday, December 1, 2011

Key development issues in Nepal from Human Rights Defender’s perspectives


Subodh Raj Pyakurel,
Chairperson:-
INSEC, Nepal. www.insec.org.np
FORUM-ASIA, Bangkok. www.forum-asia.org.

Topics of talk: What are the key development issues in Nepal. (IDS/ODC, Kathmandu, 18th October, 2011).
In the NGO report submitted to the UN HRC for the purpose of review of human rights situation of Nepal in January 2011, Nepali Civil Society concluded that there are THREE main challenges:
1.      Discrimination: reflected in daily life of Women, Dalit, Indigenous people, Children, persons with disabilities and Madhesi and other ethnic minorities etc.
2.      Impunity: reflected in Weak rule of law, Transitional Justice and asserting and monitoring rights (Civil and Political Rights).
3.      ESCR (Economic, Social & Cultural Rights): lack of significant progress in addressing the human rights situation in the country in respect of ESC rights, delayed pretending shortage of resources and allocation to the ESC rights, Technical infrastructure and needed law.

While practicing Human Rights for Development of people I realize FIVE aspiration and strong commitment of the people to fight for:-
1.      Progressive Change for better future.
2.      Protection of Freedom for dignity and choice.
3.      Inclusive Politics for recognition and respect.
4.      Good practices for development of culture of equality and equity.
5.      Human Rights, a fundamental principle to guide the nation in all situations.

Politics of Wrong, Frustration and Misinterpretation:
·         Constitution of 1991 had all requisites of modern democracy and human rights.
·         Nepal became party to all important international human rights instruments including under process to ratify Rome Statute of the ICC (International criminal Court).
·         GDP growth on and average to 7 to 8 percent.
·         Process to resource and power allocation to local bodies started.
·         Free economy, private business and global partnership started.
·         Several laws were promulgated and process of creating modern state initiated.
·         National human rights institutions established
·         Civil society expanded in terms of coverage and issues.
·         Politics of Ideology and Trade Union expanded in fast pace.
o   But, the culture of discrimination in Socio-Economic fronts did not change significantly. Politicians instead of challenging discrimination were based on perpetrators.
o   Wide expansion of education, Media and Civil Society movements brought consciousness, raised expectation, asserted rights of the people while politics was unable to cope it in knowledge and technical expertise.
o   Within five years of newly borned democracy CPN (M) Communist Party of Nepal Maoist, started high voltage armed struggle to eliminate the system, infrastructure and culture. They claimed they had the alternative. At later stage they claimed they have parallel structure (but never could prove the process).

Right to development, according to Vienna Declaration and Programme of Action (VDPA) 1993, is Fundamental Rights of the people, universal and inalienable rights. Part 1, Para 11 of the declaration states- “The right to development should be fulfilled so as to meet equitably the developmental and environmental needs of present and future generations”. The declaration emphasizes on Dignified Life, Right to enjoy benefits of scientific progress and its applications. During the Vienna International Conference states reaffirmed their solemn commitment to fulfill their obligation to promote universal respect for and observance and protection of all Human Rights and Fundamental Freedoms for all.

Development for the people from human rights activist’s perspective.
·         Enjoyment of freedom.
·         Sense of security.
·         Equality in opportunity.
·         Access to capacity development.
·         Meaningful participation.
Change and progress towards betterment with affirmative perspective is development in current Nepali perspective.

Development & Hope:

·         Undeclared Nepal Living Standard Survey by CBS (Nepal Bureau of Survey) 2003-04 to 2009-10, identified that there have been excellent progress in some of the indicators; only 13% population below poverty line, Literacy has gone up to 70%, Child mortality rate, Girls education, Women’s reproductive health etc. has shown tremendous progress.
·         Constituent assembly represents proportionate representation of Women, Janjati and Dalit.
·         Civil society has been successful in making interventions to add perfection in many laws, putting parallel and counter agenda in international forum and holding discussions within the constituent assembly.
·         Media has been exposing public issues, uniting people and creating awareness.
·         Local governments are under more public scrutiny.
·         Judiciary has made several instructions on the formulation of remedial law and fulfillment of commitments.
·         Interim constitution provides wider protection of fundamental rights of the people including freedom of opinion and housing rights.
·         Comprehensive peace accord has stipulated guidelines towards peace process and transitional justice.
·         The work of CA provides an opportune environment to resolve some of the longstanding socio-economic and civil political rights related issues

Migration, a new perspective in National Development:
Non Resident Nepali and Migrant workers from Nepal working in Middle east and other countries has become a new source of knowledge.

Micro Hydro, Community forest, Collective Vegetable farmers, Cooperatives, Community Users’ groups etc…………….









Profile of SUBODH RAJ PYAKUREL



Mr. Subodh Raj Pyakurel is Chairperson of Informal Sector Service Centre (INSEC) and the Asian Forum for Human Rights and Development (FORUM-ASIA). Executive Member of South Asia Forum for Human Rights (SAFHR), Mr. Pyakurel is also Chairperson of Human Rights Home (HRH), and Convener of NEMA (National Election Monitoring Alliance) and NCICC (National Coalition for ICC), Nepal and HR Treaty Monitoring Coordination Committee (HRTMCC), Nepal and National Coalition for UPR- 2011, a coalition of 235 HR NGOs to present alternative report at UPR of Nepal in HRC, Geneva.

Mr. Pyakurel had also served as a member of the National Monitoring Committee on Code of Conduct for Ceasefire (NMCC) formed by an agreement between the government and CPN (Maoist) to monitor human rights situation during the cease fire by State and the CPN (Maoist) in 2006. He was appointed member of high level committee to monitor composite peace agreement and other political agreements.

He has attended several programs related with Human Rights and Democracy and for that purpose he has visited several countries and UN events.

His role on motivating grass roots Human Rights and democratic Rights defenders and People and Media from around the country to oppose King’s unconstitutional take over in the year 2005 has been greatly recognized and acclaimed

Mr. Pyakurel is a resident of Biratnagar-15, Morang, Nepal. He is a Master of Business Administration (MBA) from Tribhuvan University, Nepal and acquires a Short-term Graduate Training Course on Financial Program Management from Program Planning Centre, Bradford University, United Kingdom.

Mr. Pyakurel can be reached at +977 98510 26841 (Mobile), +977 1 4278770 (Tel.) and insec@insec.org.np or subodh.freenep@gmail.com.






Regional Human Rights Mechanism in South Asia


Knowledge-Sharing Workshop on Sub-Regional Human Rights Mechanisms, Jindal Global University (JGU), National Capital Region of, 8-10 December 2011 Delhi India





South Asian countries are connected and interrelated by their geographical, ecological and environmental and cultural interdependence as well. Anthropological, historical, philosophical, religious and cultural bonds make us naturally closer to each other. South Asia region, the homeland of one-fifth of the world’s population is still grappling with daunting human rights challenges, such as impunity, the lack of political will if not sheer disinterest of a number of governments to comply with their human rights obligations, continued curtailment of civil and political rights as well as widespread poverty and underdevelopment. Countries in the region are buffeted by increasing challenges from internal strife and unrest, the threat of terrorist attacks followed by attack against democratic rights, fundamental freedoms   and civil liberties in the name of counter-terrorism measures and national security legislations.

One of the most welcome developments in South Asia has been the emergence of the South Asian Association for Regional Cooperation (SAARC) in 1985 which aims for promoting regional cooperation to work together, in a spirit of friendship, trust and understanding, to improve people's quality of life; to accelerate economic growth, social programs, cultural development, to strengthen self-reliance among South Asian states and to promote collaboration in economic, social, technical and scientific fields. Even after the 26 years since its establishment, no program has been effectively implemented to achieve the Charter goals or to establish South Asian identity as an integrated region in addressing issues of human rights and development despite repeated commitments from the member countries of the SAARC expressed through their   constitutional, legal and national policies as state party to international human rights treaties.

The continued widespread and worsening poverty and underdevelopment in many South Asian countries points to the failure of governments as duty-bearers in upholding and fulfilling the basic right of a dignified human life for their citizens and constituencies, as well as the failure of so-called economic and development models. No country of the SAARC region has formally rejected on the need of building a judicial and egalitarian society in the 21st century. However, the activities of the past 26 years of SAARC have proved that the speeches made by state heads each year have been futile and the mechanisms established under the SAARC are ineffective without any involvement and partnership of civil society. Therefore, many critics are hesitant with reasonable doubt that SAARC will not be able to yield effective results unless there is a guarantee of democracy and the rule of law and adherence to and implementation of international principles of human rights norms.

The establishment of the ‘South Asia Forum’ for the generation of debate and discussion during the 16th SAARC held in Thimpu, Bhutan on 28-29 April, 2010, and continuing the idea of the SAARC democracy Charter have provided additional blocks for further strengthening the region’s commitment to human rights. However, compared with development in the African, European, Inter-American and ASAEN region, the activities and initiatives of SAARC are at a very preliminary stage. South Asia is lagging behind to learn from the success stories and learned lessons of other regional organizations such as European Union which has already managed to transcend beyond the national borders among to work together towards enhancement of democracy, human rights and economic integrity from various mechanisms including use of Euro as a single currency. Likewise, the positive steps initiated by African regional organizations for security and human rights and the commendable work carried out by the Latin American regional mechanism for the protection and promotion of human rights, that has involved making the concerned member states accountable to gross violation of human rights including enforced disappearances. SAARC has immense opportunity to learn from the existing regional mechanisms that can help feed into its future policies on regional mechanisms for democracy and human rights.


The most effective action for the protection and promotion of human rights must take place at the national level. However, in South Asia, most national human rights institutions are still too weak and lack independence. Having a regional mechanism would be beneficial in complementing, strengthening and reinforcing the work of NHRIs and existing international human rights mechanisms as well. Therefore, concerted and consistent efforts are necessary from civil society organizations and key stakeholders for the establishment of regional and sub-regional institutions and mechanisms for the promotion and protection of human rights in South Asia.

It was Maldivian president Mohammad Nasheed who proposed for the development of a ‘SAARC Human Rights mechanism’ during the 16th SAARC summit held in Bhutan. As the host of the next summit, the Maldives had a crucial role to play in including issues of human rights in the working list in the 17th SAARC summit held on 10-11November 2011.However, no concrete proposal on human rights was discussed except the reiteration for a regional mechanism for the promotion of good governance and human rights during the inaugural speech of President Nasheed in the Maldives Summit. The South Asian civil society expected that South Asian countries would raise their concern regarding human rights supported by the cases of India, with its proposal of South Asia Forum, Bangladesh with its proposal of ‘SAARC Democracy Charter’; Nepal as the supporter of a civil society-proposed human rights mechanism, Pakistan and Sri Lanka as the champions of climate change; who were expected to play an important role in the 17th summit. However, as in the previous sessions, the 17th summit also could not integrate itself with the millennium expectations of SAARC citizens. The four ministerial agreements signed during the summit namely   SAARC Agreement on Rapid Response to Natural Disasters, SAARC Seed Bank Agreement, SAARC Agreement on Multilateral Arrangement on Recognition of Conformity Assessment and SAARC Agreement on Implementation of Regional Standards were endorsed without mentioning any direct linkage with human rights and addressing the demand for the establishment of regional human Rights mechanism in the South Asia.

Since the establishment of the SAARC, civil society has been encouraging the governments for regional inter-governmental initiatives for the promotion of freedom, justice and peace. The South Asia People's Forum:" People's SAARC"[1] organized in 2005 brought together national and international social activists, intellectuals and secular and democratic forces interested in the preservation of the secular, pluralistic and democratic fabric of the South Asian society. In 2007 and 2008, SAAPE mobilized its resources and members to make ‘Peoples SAARC’, a broader and larger event. In 2010 representatives of non-governmental organizations and people’s movements across the SAARC region at the “First Sub-Regional Workshop on South Asia Human Rights Mechanism”, gathered together in Kathmandu to call for the establishment of the regional human rights mechanism in South Asia. As an important follow-up to the Kathmandu workshop, a half day workshop was conducted by FORUM-ASIA at the premises of “People’s SAARC” in India, New Delhi on 21 April 2010 to broaden, strengthen and consolidate efforts in building sub-regional campaigns on establishment of human rights body for South Asia. Similarly, with the aim to facilitate strong advocacy for the regional mechanism, a seminar on “The need of Inter-Governmental Human Rights Mechanism in South Asia” was organized in Islamabad, Pakistan on 16 November 2010. The Fifth General Forum of the Solidarity for Asian People’s Advocacy (SAPA) Working Group on South Asia held on 18th February 2011 in Dhaka, Bangladesh deliberated on the issue of regional human rights mechanism in South Asia and SAARC Charter of Democracy and came out with strong recommendations to the South Asian governments in addressing the situation of human rights violations through strong and accountable human rights mechanisms and participation of civil society in the SAARC process. In addition to this, prominent civil society members gathered in Kathmandu for the ‘Second Sub-Regional Workshop on Human Rights Mechanism in South Asia’ on 25-26 July 2011 to develop concrete strategy to generate dialogue and discussion on establishing a regional human rights body in South Asia. The workshop recommended an informal working group and identified need for full involvement of civil society in development of human rights instruments and mechanisms as essential for the credibility and legitimacy of systems.


The regional human rights mechanisms have become an integral part of the human rights system as they:
  1. Act as a check and balance on national process
  2. Promote regional peace, security and human rights
  3. Provide regional input to the development of international human rights standards and the improvement of international human rights mechanisms
  4. Help national governments to better address human rights concerns that cross national borders; for example, human rights violations and abuses that come from organized crime, including terrorism, human trafficking, migration etc.

Establishment of an independent, effective and accountable 'Human Rights Commission' with an explicit mandate of monitoring, promotional and recommendatory powers can assist South Asian member states in addressing human rights concerns in their respective areas of jurisdiction; ensure that international human rights laws are observed and implemented by SAARC countries who have agreed to them; and help South Asian people to have a common understanding of universal human rights issues and perspectives. While doing so, the body can seek to benefit from the expertise and experience of groups, organizations and individuals as well as human rights best practices and positive developments within the region and internationally as stipulated in the ASEAN rule of procedures and other Regional mechanisms. Such machinery guided by  international principles and best practices of human rights will need to be scrutinized in order to make it accountable based on the obligations of the member states to the principles of Human Rights and Democracy.. In order to make SAARC more effective as a regional mechanism to combat impunity, promote basic rights of the peoples of the region, SAARC should reform from within to create a new mechanism.
    SAARC region is rich in terms of its   long tradition and history of people’s movements and non-governmental organizations in South Asia struggling for democracy, human rights, justice and peace. In order to translate the commitment expressed by SAARC through a number of frameworks, Conventions, Declarations and established mechanisms, it should establish an independent, effective and accountable regional human rights mechanism by expanding the 'SAARC Social Charter' and 'SAARC Charter on Democracy' through an enabling protocol with an explicit mandate of promoting, protecting and fulfilling human rights, through a process of wide consultation with non-governmental organizations, people movements at national and regional level. Moreover, SAARC should recognize the role of the National Human Rights Institutions (NHRIs) and civil society in SAARC process towards consolidating democracy and human rights in addressing the pressing   human rights issues of the region including gross violations of human rights and abuses, hunger, unemployment, and violence against women and children. Therefore, SAARC needs to review its current practice of functioning by bureaucracy and restricting access of civil society organizations in the debate, dialogue and agenda setting.
The voice of the people of South Asia that has largely been ignored needs to be heard; considered and acted upon; particularly with regard to how they want to pursue the issue of democratization and human rights.

Subodh Raj Pyakurel
Chairperson
Informal Sector Service Centre (INSEC),
FORUM-ASIA, Bangkok. www.forum-asia.org.
G.P.O. Box: 2726, Kathmandu, Nepal
Tel.: +977-1-4278770; Fax: +977-1-4270551, (M) +977 98510-26841.


[1] The South Asia People's Forum:" People's SAARC" organized by PVCHR, Wiros Lokh Institute, INSEC and LOKOJ held from January 15 to 17, 2005 brought together National and International social activists, intellectuals and secular and democratic forces interested in the preservation of the secular, pluralistic and democratic fabric of the South Asian society

Regional Human Rights Mechanism in South Asia


Knowledge-Sharing Workshop on Sub-Regional Human Rights Mechanisms, Jindal Global University (JGU), National Capital Region of, 8-10 December 2011 Delhi India





South Asian countries are connected and interrelated by their geographical, ecological and environmental and cultural interdependence as well. Anthropological, historical, philosophical, religious and cultural bonds make us naturally closer to each other. South Asia region, the homeland of one-fifth of the world’s population is still grappling with daunting human rights challenges, such as impunity, the lack of political will if not sheer disinterest of a number of governments to comply with their human rights obligations, continued curtailment of civil and political rights as well as widespread poverty and underdevelopment. Countries in the region are buffeted by increasing challenges from internal strife and unrest, the threat of terrorist attacks followed by attack against democratic rights, fundamental freedoms   and civil liberties in the name of counter-terrorism measures and national security legislations.

One of the most welcome developments in South Asia has been the emergence of the South Asian Association for Regional Cooperation (SAARC) in 1985 which aims for promoting regional cooperation to work together, in a spirit of friendship, trust and understanding, to improve people's quality of life; to accelerate economic growth, social programs, cultural development, to strengthen self-reliance among South Asian states and to promote collaboration in economic, social, technical and scientific fields. Even after the 26 years since its establishment, no program has been effectively implemented to achieve the Charter goals or to establish South Asian identity as an integrated region in addressing issues of human rights and development despite repeated commitments from the member countries of the SAARC expressed through their   constitutional, legal and national policies as state party to international human rights treaties.

The continued widespread and worsening poverty and underdevelopment in many South Asian countries points to the failure of governments as duty-bearers in upholding and fulfilling the basic right of a dignified human life for their citizens and constituencies, as well as the failure of so-called economic and development models. No country of the SAARC region has formally rejected on the need of building a judicial and egalitarian society in the 21st century. However, the activities of the past 26 years of SAARC have proved that the speeches made by state heads each year have been futile and the mechanisms established under the SAARC are ineffective without any involvement and partnership of civil society. Therefore, many critics are hesitant with reasonable doubt that SAARC will not be able to yield effective results unless there is a guarantee of democracy and the rule of law and adherence to and implementation of international principles of human rights norms.

The establishment of the ‘South Asia Forum’ for the generation of debate and discussion during the 16th SAARC held in Thimpu, Bhutan on 28-29 April, 2010, and continuing the idea of the SAARC democracy Charter have provided additional blocks for further strengthening the region’s commitment to human rights. However, compared with development in the African, European, Inter-American and ASAEN region, the activities and initiatives of SAARC are at a very preliminary stage. South Asia is lagging behind to learn from the success stories and learned lessons of other regional organizations such as European Union which has already managed to transcend beyond the national borders among to work together towards enhancement of democracy, human rights and economic integrity from various mechanisms including use of Euro as a single currency. Likewise, the positive steps initiated by African regional organizations for security and human rights and the commendable work carried out by the Latin American regional mechanism for the protection and promotion of human rights, that has involved making the concerned member states accountable to gross violation of human rights including enforced disappearances. SAARC has immense opportunity to learn from the existing regional mechanisms that can help feed into its future policies on regional mechanisms for democracy and human rights.


The most effective action for the protection and promotion of human rights must take place at the national level. However, in South Asia, most national human rights institutions are still too weak and lack independence. Having a regional mechanism would be beneficial in complementing, strengthening and reinforcing the work of NHRIs and existing international human rights mechanisms as well. Therefore, concerted and consistent efforts are necessary from civil society organizations and key stakeholders for the establishment of regional and sub-regional institutions and mechanisms for the promotion and protection of human rights in South Asia.

It was Maldivian president Mohammad Nasheed who proposed for the development of a ‘SAARC Human Rights mechanism’ during the 16th SAARC summit held in Bhutan. As the host of the next summit, the Maldives had a crucial role to play in including issues of human rights in the working list in the 17th SAARC summit held on 10-11November 2011.However, no concrete proposal on human rights was discussed except the reiteration for a regional mechanism for the promotion of good governance and human rights during the inaugural speech of President Nasheed in the Maldives Summit. The South Asian civil society expected that South Asian countries would raise their concern regarding human rights supported by the cases of India, with its proposal of South Asia Forum, Bangladesh with its proposal of ‘SAARC Democracy Charter’; Nepal as the supporter of a civil society-proposed human rights mechanism, Pakistan and Sri Lanka as the champions of climate change; who were expected to play an important role in the 17th summit. However, as in the previous sessions, the 17th summit also could not integrate itself with the millennium expectations of SAARC citizens. The four ministerial agreements signed during the summit namely   SAARC Agreement on Rapid Response to Natural Disasters, SAARC Seed Bank Agreement, SAARC Agreement on Multilateral Arrangement on Recognition of Conformity Assessment and SAARC Agreement on Implementation of Regional Standards were endorsed without mentioning any direct linkage with human rights and addressing the demand for the establishment of regional human Rights mechanism in the South Asia.

Since the establishment of the SAARC, civil society has been encouraging the governments for regional inter-governmental initiatives for the promotion of freedom, justice and peace. The South Asia People's Forum:" People's SAARC"[1] organized in 2005 brought together national and international social activists, intellectuals and secular and democratic forces interested in the preservation of the secular, pluralistic and democratic fabric of the South Asian society. In 2007 and 2008, SAAPE mobilized its resources and members to make ‘Peoples SAARC’, a broader and larger event. In 2010 representatives of non-governmental organizations and people’s movements across the SAARC region at the “First Sub-Regional Workshop on South Asia Human Rights Mechanism”, gathered together in Kathmandu to call for the establishment of the regional human rights mechanism in South Asia. As an important follow-up to the Kathmandu workshop, a half day workshop was conducted by FORUM-ASIA at the premises of “People’s SAARC” in India, New Delhi on 21 April 2010 to broaden, strengthen and consolidate efforts in building sub-regional campaigns on establishment of human rights body for South Asia. Similarly, with the aim to facilitate strong advocacy for the regional mechanism, a seminar on “The need of Inter-Governmental Human Rights Mechanism in South Asia” was organized in Islamabad, Pakistan on 16 November 2010. The Fifth General Forum of the Solidarity for Asian People’s Advocacy (SAPA) Working Group on South Asia held on 18th February 2011 in Dhaka, Bangladesh deliberated on the issue of regional human rights mechanism in South Asia and SAARC Charter of Democracy and came out with strong recommendations to the South Asian governments in addressing the situation of human rights violations through strong and accountable human rights mechanisms and participation of civil society in the SAARC process. In addition to this, prominent civil society members gathered in Kathmandu for the ‘Second Sub-Regional Workshop on Human Rights Mechanism in South Asia’ on 25-26 July 2011 to develop concrete strategy to generate dialogue and discussion on establishing a regional human rights body in South Asia. The workshop recommended an informal working group and identified need for full involvement of civil society in development of human rights instruments and mechanisms as essential for the credibility and legitimacy of systems.


The regional human rights mechanisms have become an integral part of the human rights system as they:
  1. Act as a check and balance on national process
  2. Promote regional peace, security and human rights
  3. Provide regional input to the development of international human rights standards and the improvement of international human rights mechanisms
  4. Help national governments to better address human rights concerns that cross national borders; for example, human rights violations and abuses that come from organized crime, including terrorism, human trafficking, migration etc.

Establishment of an independent, effective and accountable 'Human Rights Commission' with an explicit mandate of monitoring, promotional and recommendatory powers can assist South Asian member states in addressing human rights concerns in their respective areas of jurisdiction; ensure that international human rights laws are observed and implemented by SAARC countries who have agreed to them; and help South Asian people to have a common understanding of universal human rights issues and perspectives. While doing so, the body can seek to benefit from the expertise and experience of groups, organizations and individuals as well as human rights best practices and positive developments within the region and internationally as stipulated in the ASEAN rule of procedures and other Regional mechanisms. Such machinery guided by  international principles and best practices of human rights will need to be scrutinized in order to make it accountable based on the obligations of the member states to the principles of Human Rights and Democracy.. In order to make SAARC more effective as a regional mechanism to combat impunity, promote basic rights of the peoples of the region, SAARC should reform from within to create a new mechanism.
    SAARC region is rich in terms of its   long tradition and history of people’s movements and non-governmental organizations in South Asia struggling for democracy, human rights, justice and peace. In order to translate the commitment expressed by SAARC through a number of frameworks, Conventions, Declarations and established mechanisms, it should establish an independent, effective and accountable regional human rights mechanism by expanding the 'SAARC Social Charter' and 'SAARC Charter on Democracy' through an enabling protocol with an explicit mandate of promoting, protecting and fulfilling human rights, through a process of wide consultation with non-governmental organizations, people movements at national and regional level. Moreover, SAARC should recognize the role of the National Human Rights Institutions (NHRIs) and civil society in SAARC process towards consolidating democracy and human rights in addressing the pressing   human rights issues of the region including gross violations of human rights and abuses, hunger, unemployment, and violence against women and children. Therefore, SAARC needs to review its current practice of functioning by bureaucracy and restricting access of civil society organizations in the debate, dialogue and agenda setting.
The voice of the people of South Asia that has largely been ignored needs to be heard; considered and acted upon; particularly with regard to how they want to pursue the issue of democratization and human rights.

Subodh Raj Pyakurel
Chairperson
Informal Sector Service Centre (INSEC),
FORUM-ASIA, Bangkok. www.forum-asia.org.
G.P.O. Box: 2726, Kathmandu, Nepal
Tel.: +977-1-4278770; Fax: +977-1-4270551, (M) +977 98510-26841.


[1] The South Asia People's Forum:" People's SAARC" organized by PVCHR, Wiros Lokh Institute, INSEC and LOKOJ held from January 15 to 17, 2005 brought together National and International social activists, intellectuals and secular and democratic forces interested in the preservation of the secular, pluralistic and democratic fabric of the South Asian society

Wednesday, November 30, 2011

Impunity: A serious challenge.



b08xLgtf M uDeL/ r'gf}lt
– ;'af]w/fh Kofs'/]n

g]kfndf /fhgLlts ultljlw u/]sf] cf/f]kdf d'2f nfu]sf /fhgLlts JolQmx¿sf] d'2f lkmtf{ lng] k|rng ljutb]lv g} x'Fb} cfPsf] xf] . @)$^ ;fnsf] /fhgLlts kl/jt{gkl5 /fhgLlts k|s[ltsf lgs} d'2f lkmtf{ eP . k~rfotsfndf  k|hftGqsf lxdfotLnfO{ em'7f d'2f nufP/ ;hfo lbg' jf km/f/ x'g afWo kfl/g] cEof;  ;fdfGo lyof] .  /fhgLlts b'/fzon] nufOPsf To:tf d'2f ax'bnLo Joj:yfsf] :yfkgfkl5 lkmtf{ lnFbf vf;} ljjfbsf] ljifoj:t' klg ag]g, g t  sfg'gL¿kn] ltgsf] j}wtfdfly k|Zglrx\g g}  v8f eof] .
g]kfndf ePsf P]ltxfl;s kl/jt{gkl5sf ;/sf/, h;nfO{ a9L k|hftflGqs / sfg'gL zf;gsf lxdfotL 7flgPsf] lyof], pgLx?sf ultljlw eg] cfzfg'¿k  b]lvPgg\ . bza;]{]{  ;z:q åGåsf cjlwdf uDeL/ k|sf/sf dfgjclwsf/ pNnª\3gsf 36gfx¿ eP . o'4/t kIfx¿n] dfgjclwsf/ / ;z:q o'4sf Go"gtd lgodsf]  klg ;Ddfg u/]gg\ . b'j} kIf cfkm\gf] ljhok|lt olt cfZj:t lyP ls h:tf];'s} cdfgjLo sfd ug{ lg?T;flxt ePgg\ .
;z:q åGåsf] ljlwjt cGTo ug]{ 3f]if0ff;lxt @)^# dª\l;/ % ut] ePsf] lj:t[t zflGt ;Demf}tf ePotf ePsf yl/yl/sf  ;xdlt / ;dem}ftfdf  ;To lg?k0f tyf d]nldnfk cfof]u / a]kQf ;DaGwL cfof]u u7g ug]{ k|lta4tf hgfOPsf] 5 . t/, tL k|lta4tfx? ;xdltsf nflu dfq ;Lldt /xFb} cfP , Jojxf/df kl/0ft x'g ;s]gg\ . ;ª\qmd0fsfnsf gfddf h:tf];'s} ck/fwLn] klg  pGd'lQm kfpg] cj:yfsf] ;[hgf ug{ yflnof] . b08xLgtfn] zflGtk|lqmofnfO{ tTsfn kmfObf k'Ug] b]lvPnf . t/, sfnfGt/df o;n] l;ª\uf] d'n'snfO{ eofjx cj:yfdf ws]Ng ;S5 eGg] vt/fk|lt bnx? r]tgzLn x'g ;s]sf 5}gg\ .bnx? cfkm\gf sfo{stf{nfO{ plGd'lQm lbnfpg ;jf]{Rr Goflos ;+oGqsf cfb]z ;d]t nTofpg kl5 kl//x]sf 5}gg\ .
dw]z cfGbf]ng, slknj:t' 36gf, /f}tx6sf] uf}/ 36gf clg To;kl5 ePsf w]/}h;f] uDeL/ dfgjclwsf/ pNnª\3gsf 36gfdf ;+nUgx?sf] d'2f lkmtf{ lnOof] . zflGt ;demf}tfkl5 u7g ePsf ;a} ;/sf/ o:tf sfo{df sdf]a]z ;+nUg /x] . s'g} ;Qf?9 bnn] cfkm"nfO{ rf]vf] k|dfl0ft ug]{ cfwf/ hf]ufPgg\ . ;jf]{Rr cbfntn] ck/fwL 7x/ u/L ;hfo ;'gfPsf] JolQmnfO{ ;d]t ;/sf/n] dfkmLsf nflu /fi6«klt;dIf u/]sf]  l;kmfl/z sfof{Gjog gug{ g]kfnsf] ;jf]{Rr cbfntn] xfn} cGtl/d cfb]z ul/;s]sf] 5 .t/, To; cfb]zlj?4 ljleGg l6sf l6Kk0fL rln/x]sf] 5 .
s'g} /fhgLlts bn;FUf cfa4 ePs} cfwf/df h3Go ck/fwdf ;+nUgx¿nfO{ pGd'lQm lbg] of] k|rngn] lgs6 eljiod} u7g ug]{ elgPsf] ;To lg¿k0f tyf d]nldnfk cfof]usf] cf}lrTodfly g} k|Zglrx\g  p7g]5 . dfkmL lbg] of] lg0f{o;Fu} h3Go dfgjclwsf/ pNnª\3gdf ;+nUg cGo lgsfo tyf JolQmx¿nfO{ dfkmL lbg] af6f] v'Ng]5 . log} s'/fnfO{ b[li6ut u/]/ )^* ebf} !^ ut] b08xLgtfsf] Psn Ph]08f lnP/ k|wfgdGqL afa'/fd e§/fO{nfO{ e]6\g uPsf dfgjclwsf/sdL{x¿nfO{ pxfFn] ;To lg?k0f tyf d]nldnfk cfof]usf] lgZsif{ a]u/ s'g} klg dfldnfnfO{ /fhgLlts xf] ls xf]Og egL lgSof]{n ug{ g;lsg] eGg' ePsf] lyof] . /fhgLlt1n] u/]sf ck/fw /fhgLlts x'g ;Sb}g eGg' ePsf] lyof] . / 8]9 dlxgfleq cfof]usf] lgdf{0f ul/;Sg] atfpg' ePsf] lyof] . t/ To;sf] Ps dlxgf glaTb} )^& k'; !( ut] ;jf]{Rr cbfntn] ;j{:j ;lxt hGds}bsf] km};nf ;'gfPsf pxfFsf] bnsf ;ef;b\ afns[i0f 9'+u]nsf] d'2f lkmtf{sf] nflu l;kmfl/; ug{] km};nf dlGqkl/ifb\n] u/]kl5 k|wfgdGqL e§/fO{ / pxfFsf ;Qf ;fem]bf/ ;+o'Qm dw];L df]rf{sf] lgotk|lt :jb]zL, ljb]zL, clwsf/sdL{ / /fli6«o dfgjclwsf/ cfof]u nufot ;+o'Qm /fi6«;ª\3nfO{ lr;f] k;]sf] 5 .
g]kfn kIf ePsf] gful/s tyf /fhgLltsclwsf/;DaGwLcGt/f{li6«o cg'aGw !(^^ sf] wf/f @-#_ n] JolQmsf] gful/s tyf /fhgLltsclwsf/ pNnª\3g ePdf lghnfO{ k|efjsf/L pkrf/sf] clwsf/ x'g] egL pNn]v u/]sf] 5 . To:tf] pkrf/n] Psftkm{ pNnª\3gstf{sf] klxrfg u/L sf/afxL ug{ / csf{]tkm{ pNnª\3gsf] kLl8tnfO{ Gofolbg ;Sg' kb{5 .
cGtl/d ;+ljwfgsf] wf/f !%! n] sfo{kflnsfnfO{ s'g} cbfnt jf cGo s'g} Goflos jf cw{Goflos jf k|zf;sLo kbflwsf/L jf lgsfon] u/]sf] ;hfonfO{ dfkmL, d'ntjL, kl/jt{g jf sdug{ ;Sg] clwsf/ k|bfg u/]sf] eP klg of] clwsf/ c;Lldt :jljj]so'Qm 5 eGg ldNb}g . pQm k|fjwfgleq c;Lldt :jljj]sLo clwsf/ /x]sf] cy{ nufPdf u}/Goflos xTof, ank"j{s a]kQf kfg]{ sfo{, oftgf tyf anfTsf/nufotsf /fli6«o tyf cGt/f{li6«o sfg'gcGtu{t uDeL/ ck/fwsf kL8sx¿nfO{ klg Ifdfbfg lbg ;lsg] vt/f x'gfn] kL8sx¿ ;hfolagf pDsg ;S5g\ . ;+o'Qm /fi6«;ª\3sf] ;fwf/0f ;efåf/f kfl/t lg0f{o g+= !^)÷$& n] kLl8tn] Gofosf] cg'e"lt ug]{ u/L dfq km};nf ug{ kfOg] k|fjwfg /fv]sf] 5 . ;/sf/jfbL kmf}Hbf/L d'2f lkmtf{ lng] gLltut dfkb08 @)%% ebf} ! df g]kfnsf] dlGqkl/ifb\åf/f kfl/t eO{ ;f] lg0f{o lqmofzLn /x]sf] cj:yf 5 .
Gofo, hjfkmb]lxtf / kLl8tsf pkrf/sf clwsf/sf ljifox¿ lj:t[t zflGt ;Demf}tfsf d'Vo a'Fbf lyP / zflGtk|lqmofnfO{ ;xof]u ug{] nf]stflGqs k4ltsf] d'Vo cfwf/ dflgPsf] lyof] . cfk/flws d'2f lkmtf{ lng' eg]sf] uDeL/ dfgjclwsf/ pNnª\3gnufotsf åGåsfnLg ck/fwdf pGd'lQm lbnfpg' xf] . o:tf sbdn] hgtfnfO{ pgLx¿sf] pkrf/ / Gofosf hfoh cfsfª\Iffx¿ db{g u/fP/ zflGtk|lqmofdf ;xefuL x'gaf6 ljd'v ub{5g\ .
ck/fwLnfO{ hjfkmb]lxtfaf6 pGd'lQm lbnfpg] o;k|sf/sf]] Goflos k|lqmofdflysf] x:tIf]k Gofokflnsfsf] :jtGqtf / ljlwsf] zf;gsf nflu uDeL/ r'gf}tL xf] .  ;z:q åGåsf] ;do df dfcf]jfbL / /fHoaf6 ePsf dfgjclwsf/ pNnª\3gsf ;a} d'2fx¿sf] cg';Gwfg ug{' cfhsf] cfjZostf xf], lbuf] zflGt :yfkgfsf] d]?b08 klg xf] .

Profile of Subodh Raj Pyakurel.


Profile of

SUBODH RAJ PYAKUREL

Mr. Subodh Raj Pyakurel is Chairperson of Informal Sector Service Centre (INSEC) and the Asian Forum for Human Rights and Development (FORUM-ASIA). Executive Member of South Asia Forum for Human Rights (SAFHR), Mr. Pyakurel is also Chairperson of Human Rights Home (HRH), and Convener of NEMA (National Election Monitoring Alliance) and NCICC (National Coalition for ICC), Nepal and HR Treaty Monitoring Coordination Committee (HRTMCC), Nepal and National Coalition for UPR- 2011, a coalition of 235 HR NGOs to present alternative report at UPR of Nepal in HRC, Geneva.

Mr. Pyakurel had also served as a member of the National Monitoring Committee on Code of Conduct for Ceasefire (NMCC) formed by an agreement between the government and CPN (Maoist) to monitor human rights situation during the cease fire by State and the CPN (Maoist) in 2006. He was appointed member of high level committee to monitor composite peace agreement and other political agreements.

His role on motivating grass roots Human Rights and democratic Rights defenders and People and Media from around the country to oppose King’s unconstitutional take over in the year 2005 has been greatly recognized and acclaimed

Mr. Pyakurel is a resident of Biratnagar-15, Morang, Nepal. He is a Master of Business Administration (MBA) from Tribhuvan University, Nepal and acquires a Short-term Graduate Training Course on Financial Program Management from Program Planning Centre, Bradford University, United Kingdom.

Mr. Pyakurel can be reached at +977 98510 26841 (Mobile), +977 1 4278770 (Tel.) and insec@insec.org.np or subodh.freenep@gmail.com.






Wednesday, October 19, 2011

UN Principles/Guidelines on Reparation/Right to Remedy


United Nations Audiovisual Library of International Law
Copyright © United Nations, 2010. All rights reserved
www.un.org/law/avl
1
THE UNITED NATIONS 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
By Theo van Boven
Honorary Professor of International Law, Maastricht University, the Netherlands
Former Special Rapporteur for the Sub-Commission on Prevention of Discrimination and
Protection of Minorities
1. Historical Context
The Sub-Commission on Prevention of Discrimination and Protection of Minorities
entrusted in 1989, by its resolution 1989/13 of 31 August 1989, a Special Rapporteur with
the task of undertaking a study concerning the right to restitution, compensation and
rehabilitation for victims of gross violations of human rights and fundamental freedoms
with a view to exploring the possibility of developing basic principles and guidelines on
the issue. The study originated at a time of political change on various continents with
prospects of a higher degree of human rights advancement. It was also a time of the
creation of transitional justice mechanisms in a series of countries. Restoring justice
implied an increased focus on the criminal responsibility of perpetrators of gross human
rights abuses and their accomplices. It also opened up the exposure of many wrongs
inflicted on the victims of these abuses with a view to rendering retributive justice and
reparative justice. It was fitting in the search for transitional justice and it responded to a
climate of improved human rights awareness that the Sub-Commission embarked, under
the auspices of its parent body the United Nations Commission on Human Rights, on the
undertaking of studies aimed respectively at combating impunity and strengthening
victims’ rights to redress and reparation.
The impunity issue and the reparations issue are undoubtedly interrelated, certainly
from the perspective of transitional justice in societies emerging from dark episodes of
violence, persecution and repression. The work on both projects was only completed after
some fifteen years of consultations and negotiations. The United Nations General
Assembly adopted in 2005 by consensus the 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 (hereinafter referred
to as “the Principles and Guidelines”) (reparation principles) and in the same year the then
United Nations Commission on Human Rights (succeeded by the Human Rights Council
in 2006) endorsed the Updated Set of principles for the protection and promotion of human
rights through action to combat impunity (impunity principles) (E/CN.4/2005/102/Add.1).
The present note will deal with the Principles and Guidelines and will first review some
significant developments in the negotiating history of this international instrument.
2. Significant Developments in the Negotiating History
In this note, a selection is made of some of the main issues that came up in the
process of discussions and negotiations.
(a) State Responsibility
From the outset the Principles and Guidelines were based on the law of State
Responsibility as elaborated over the years by the International Law Commission in a
United Nations Audiovisual Library of International Law
Copyright © United Nations, 2010. All rights reserved
www.un.org/law/avl
2
set of Articles on Responsibility of States for Internationally Wrongful Acts which
were commended in 2001 to the attention of governments by the United Nations
General Assembly (A/RES/56/83). It was argued, however, by some governments that
the Articles on State Responsibility were drawn up with inter-State relations in mind
and would not per se apply to relations between States and individuals. This argument
was countered in that it ignored the historic evolution since the Second World War of
human rights having become an integral and dynamic part of international law as
endorsed by numerous widely ratified international human rights treaties. It was also
said to ignore that the duty of affording remedies for governmental misconduct was so
widely acknowledged that the right to an effective remedy for violations of human
rights and a fortiori of gross human rights violations, may be regarded as forming part
of customary international law.
(b) Human Rights Law and International Humanitarian Law
While in the early stages the Principles and Guidelines addressed the right to a remedy
and reparation under international human rights law, later drafts also encompassed this
right under international humanitarian law. Certain governments objected to widening
the scope of the Principles and Guidelines so as to cover international humanitarian
law because of the different evolution and the distinct nature of the two fields of
international law entailing different sets of rights and obligations. These governments
favoured two separate instruments. However, this view did not prevail. It was widely
felt that insofar as the Principles and Guidelines are victim oriented and predicated on
social and human solidarity, it must be understood that the Principles and Guidelines
are not intended to reflect the legal differences between international human rights law
violations and international humanitarian law violations. It was also considered that
although the two fields of international law have developed along separate legal and
historic tracks, they nevertheless overlap in some respects and provide complementary
protections of victims, though not necessarily in the same manner or using the same
terminology.
(c) Gross Violations or All Violations
The initial study carried out by the Special Rapporteur under the mandate of the Sub-
Commission referred to victims of gross violations of human rights and fundamental
freedoms. In this study it was noted that the word “gross” qualifies the term
“violations” and indicates the serious character of the violations but that the term
“gross” is also related to the type of human rights that is being violated. In the ensuing
discussions and negotiations it was, however, argued that the Principles and
Guidelines would be unduly restrictive since all violations of human rights entail the
right to redress and reparation. On the other hand, with the evolving opinion that the
Principles and Guidelines should also cover serious violations of international
humanitarian law, the view prevailed that the focus of the document should be on the
worst violations. The authors had in mind the violations constituting international
crimes under the Rome Statute of the International Criminal Court. On this premise, a
number of provisions were included in the Principles and Guidelines spelling out legal
consequences that are contingent, according to the present state of international law,
upon international crimes. Such provisions affirm the duty of States to investigate and,
if there is sufficient evidence, the duty to submit to prosecution the person allegedly
responsible for the violations and, if found guilty, the duty to punish (principle 4).
They also include the duty to make appropriate provisions for universal jurisdiction
(principle 5), as well as references to the non-applicability of statutes of limitations
(principles 6-7). While the Principles and Guidelines focus on “gross” and “serious”
United Nations Audiovisual Library of International Law
Copyright © United Nations, 2010. All rights reserved
www.un.org/law/avl
3
violations, it is generally acknowledged that in principle all violations of human rights
and international humanitarian law entail legal consequences. Thus, in order to rule
out any misunderstanding on this score, the following phrase was included in principle
26 on non-derogation:
“[I]t is understood that the present Principles and Guidelines are without prejudice to
the right to a remedy and reparation for victims of all violations of international
human rights and international humanitarian law” (italics added).
(d) The Notion of Victims
In situations which are characterized by systematic and gross human rights abuses,
large numbers of human beings are usually affected. In principle, they are all entitled
to reparative justice. Problems do arise, however, because of the tension between the
large number of persons involved and the limited capacity, in many situations, to
afford reparations. In order to devise and apply fair and just criteria for the rendering
of reparative justice in terms of personal and material entitlements, it was argued that
there must be an objective test to determine who is a victim. A great variety of views
were expressed in the consultations and deliberations on these issues. Views differed
as to whether collectivities should be included in the notion of victims. Reservations
were also expressed against legal or moral persons as possible victims. As a general
compromise it was agreed to base the notion of victims, as reflected in principles 8
and 9 of the Principles and Guidelines, on the terms of the generally accepted
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power,
adopted in 1985 by the United Nations General Assembly (A/RES/40/34). This
definition notes that a person is a victim if he or she suffered physical or mental harm,
economic loss, or impairment of his or her fundamental rights; that there can be both
direct victims and indirect victims, such as family members or dependents of the direct
victim; that persons can suffer harm individually or collectively.
(e) Non-State Actors
While the Principles and Guidelines are drawn up on the basis of State responsibility,
the issue of responsibility of non-State actors was also raised in the discussions and
negotiations, notably insofar as movements or groups exercise effective control over a
certain territory and people in that territory, but also with regard to business
enterprises exercising economic power. It was generally felt that non-State actors are
to be held responsible for their policies and practices, allowing victims to seek redress
and reparation on the basis of legal liability and human solidarity, and not on the basis
of State responsibility. The Principles and Guidelines provide for equal and effective
access to justice, “irrespective of who may ultimately be the bearer of responsibility
for the violation” (principle 3 (c)). In this connection reference is also made to the
following provision: “In cases where a person, a legal person, or other entity is found
liable for reparation to a victim, such party should provide reparation to the victim or
compensate the State if the State has already provided reparation to the victim”
(principle 15, last sentence). It is a victim-oriented perspective that was kept in mind
in extending, albeit in a modest and cautious way, the scope of the Principles and
Guidelines to include the responsibility and liability of non-State actors.
United Nations Audiovisual Library of International Law
Copyright © United Nations, 2010. All rights reserved
www.un.org/law/avl
4
3. Structure and Summary of Key Provisions
The Principles and Guidelines have a preamble setting out their purpose and object.
They are subsequently divided into the following thirteen sections containing a total of
twenty seven articles:
- Obligation to respect, ensure respect for and implement international human rights law
and international humanitarian law (Section I)
- Scope of the obligation (Section II)
- Gross violations of international human rights law and serious violations of
international humanitarian law that constitute crimes under international law (Section
III)
- Statutes of limitations (Section IV)
- Victims of gross violations of international human rights law and serious violations of
international humanitarian law (Section V)
- Treatment of victims (Section VI)
- Victims’ right to remedies (Section VII)
- Access to justice (Section VIII)
- Reparation for harm suffered (Section IX)
- Access to relevant information concerning violations and reparation mechanisms
(Section X)
- Non-discrimination (Section XI)
- Non-derogation (Section XII)
- Rights of others (Section XIII)
Broadly speaking, the first four sections, encompassing seven articles, affirm the
obligations of States and legal implications in connection with gross violations of
international human rights law and serious violations of international humanitarian law,
notably the obligation to prevent violations, the obligation to investigate, prosecute and
punish perpetrators, the obligation to provide effective access to justice to all persons
alleging a violation, and the obligation to afford full reparation to victims (principles 1-4).
The legal implications relate to and qualify universal jurisdiction, extradition, judicial
assistance and cooperation as well as statutes of limitations (principles 5-7).
The larger part of the Principles and Guidelines, with strong domestic law
implications, sets out the status and the rights of victims, and corresponds to the title of the
document as it refers to the right of victims to a remedy and reparation (in particular
principles 11-23). A core component of the Principles and Guidelines, denoting a broad
range of material and symbolic means to afford reparation to victims, is laid out in the
principles describing the various forms of reparation. They were formulated with the
Articles on State Responsibility of the International Law Commission in mind. The various
forms of reparation and their scope and content, covering both monetary and non-monetary
reparations, may be summarized as follows:
- Restitution refers to measures which “restore the victim to the original situation before
the gross violations of international human rights law and serious violations of
international humanitarian law occurred” (principle 19). Examples of restitution
include: 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.
- Compensation: “should be provided for any economically assessable damage, as
appropriate and proportional to the gravity of the violation and the circumstances of
United Nations Audiovisual Library of International Law
Copyright © United Nations, 2010. All rights reserved
www.un.org/law/avl
5
each case” (principle 20). The damage giving rise to compensation may result from
physical or mental harm; lost opportunities, including employment, education and
social benefits; moral damage; costs required for legal or expert assistance, medicine
and medical services, and psychological and social services.
- Rehabilitation includes medical and psychological care, as well as legal and social
services (principle 21).
- Satisfaction includes a broad range of measures, from those aiming at cessation of
violations to truth seeking, the search for the disappeared, the recovery and the
reburial of remains, public apologies, judicial and administrative sanctions,
commemoration, and human rights training (principle 22).
- Guarantees of non-repetition comprise broad structural measures of a policy nature
such as institutional reforms aiming at civilian control over military and security
forces, strengthening judicial independence, the protection of human rights defenders,
the promotion of human rights standards in public service, law enforcement, the
media, industry and psychological and social services (principle 23).
4. Influence on Subsequent Documents
Since the beginning of their drafting, the Principles and Guidelines were meant to
reflect the current state of international law on remedies and reparations. The preamble, in
its seventh paragraph, emphasizes that “the Basic Principles and Guidelines […] do not
entail new international or domestic legal obligations but identify mechanisms, modalities,
procedures and methods for the implementation of existing legal obligations under
international human rights law and international humanitarian law which are
complementary though different as to their norms”. Already in their draft form, the
Principles and Guidelines have served as reference for governments and domestic, regional
and international courts. Thus, several Latin American countries, in drawing up legislation
on reparation for victims, took the draft Principles and Guidelines into account. Also the
Inter-American Court of Human Rights referred several times to the (draft) Principles and
Guidelines in its jurisprudence relating to various forms of collective and individual
reparation it awarded. Further, the Statute of the International Criminal Court adopted by a
diplomatic conference in Rome in 1998, notably in article 75 dealing with reparation to
victims, bears in its intent and wording the imprint of the (then) draft Principles and
Guidelines.
It should also be noted that in a decision of 18 January 2008 (Decision on victims’
participation in the case of The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06),
the Trial Chamber of the International Criminal Court, in the absence of a definition of the
concept of harm under its own rules, referred to this concept in principle 8 of the Principles
and Guidelines as providing “appropriate guidance”. A highly notable impact of the
Principles and Guidelines on the development of international human rights law can be
found in the International Convention for the Protection of All Persons from Enforced
Disappearances adopted by the General Assembly in December 2006 (A/RES/61/177).
Article 24 of this Convention, following the various forms of reparation as set out in the
Principles and Guidelines, is more elaborate and specific about the victims’ right to obtain
reparation than any previous international human rights treaty.
United Nations Audiovisual Library of International Law
Copyright © United Nations, 2010. All rights reserved
www.un.org/law/avl
6
Related Material
A. Legal Instruments
Rome Statute of the International Criminal Court, Rome, 17 July 1998, United Nations,
Treaty Series , vol. 2187, p. 3
International Convention for the Protection of All Persons from Enforced Disappearance,
in: Report of the Human Rights Council on its 7th session, A/HRC/7/78, 14 July 2008, p.
74-75
B. Jurisprudence
International Criminal Court, Trial Chamber, Decision of 18 January 2008on victims’
participation in the case of The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06
C. Documents
1. Preparatory Documents
Report of the Sub-Commission on Prevention of Discrimination and Protection of
Minorities on its forty-first session, 7 August to 1 September 1989 (E/CN.4/Sub.2/1989/58
(E/CN.4/1990/2))
Preliminary report submitted by Theo van Boven, Special Rapporteur, “Study concerning
the right to restitution, compensation and rehabilitation for victims of gross violations of
human rights and fundamental freedoms” (E/CN.4/Sub.2/1990/10, 26 July 1990)
Progress reports submitted by Theo van Boven, Special Rapporteur, “Study concerning the
right to restitution, compensation and rehabilitation for victims of gross violations of
human rights and fundamental freedoms” (E/CN.4/Sub.2/1991/7, 25 July 1991, and
E/CN.4/Sub.2/1992/8, 29 July 1992)
Final report submitted by Mr. Theo van Boven, Special Rapporteur, “Study concerning the
right to restitution, compensation and rehabilitation for victims of gross violations of
human rights and fundamental freedoms” (E/CN.4/Sub.2/1993/8, 2 July 1993)
Revised set of basic principles and guidelines on the right to reparation for victims of gross
violations of human rights and humanitarian law prepared by Mr. Theo van Boven
pursuant to Sub-Commission decision 1995/117 (second draft) (E/CN.4/Sub.2/1996/17, 24
May 1996)
Basic principles and guidelines on the right to reparation for victims of [gross] violations
of human rights and international humanitarian law prepared by Mr. van Boven (third
revised draft) (E/CN.4/Sub.2/1997/104, 13 January 1997 (E/CN.4/1997/104, Annex))
Report of the independent expert on the right to restitution, compensation and
rehabilitation for victims of grave violations of human rights and fundamental freedoms,
Mr. M. Cherif Bassiouni, submitted pursuant to Commission on Human Rights resolution
1998/43 (E/CN.4/1999/65, 8 February 1999)
Final report of the Special Rapporteur, Mr. M. Cherif Bassiouni, submitted in accordance
with Commission resolution 1999/33, “The right to restitution, compensation and
United Nations Audiovisual Library of International Law
Copyright © United Nations, 2010. All rights reserved
www.un.org/law/avl
7
rehabilitation for victims of gross violations of human rights and fundamental freedoms”
(E/CN.4/2000/62, 18 January 2000)
Note by the High Commissioner for Human Rights on the right to a remedy and reparation
for victims of violations of international human rights and humanitarian law, transmitting
the Report of the consultative meeting on the draft Basic principles and guidelines on the
right to a remedy and reparation for victims of violations of international human rights and
humanitarian law (E/CN.4/2003/63, 27 December 2002)
Note by the High Commissioner for Human Rights on the right to a remedy and reparation
for victims of violations of international human rights and humanitarian law, transmitting
the Report of the second consultative meeting on the Basic principles and guidelines on the
right to a remedy and reparation for victims of violations of international human rights law
and humanitarian law (E/CN.4/2004/57, 10 November 2003)
Note by the High Commissioner for Human Rights on the right to a remedy and reparation
for victims of violations of international human rights and humanitarian law, transmitting
the Report the third consultative meeting on the “Basic principles and guidelines on the
right to a remedy and reparation for victims of violations of international human rights and
humanitarian law” (E/CN.4/2005/59, 21 December 2004)
General Assembly, Summary records of meetings Nos. 22, 29, 37 and 39 held in the Third
Committee from 24 October to 10 November 2005 (A/C.3/60/SR.22, 29, 37 and 39)
2. Other Documents
General Assembly resolution 40/34 of 29 November 1985 (Declaration of Basic Principles
of Justice for Victims of Crime and Abuse of Power)
General Assembly resolution 56/83 of 12 December 2001 (Responsibility of States for
internationally wrongful acts)
Updated Set of principles for the protection and promotion of human rights through action
to combat impunity (E/CN.4/2005/102/Add.1)