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security for displaced persons, measures to enhance security for civilians

who remain in their communities, and for host communities living in or

around areas where refugees or internally displaced persons take shelter.

The Aide Memoire called for facilitation of safe and unimpeded

access to vulnerable populations as the fundamental prerequisite for

humanitarian assistance and protection through appropriate security

arrangements, engagement in sustained dialogue with all parties to the

armed conﬂict, facilitation of the delivery of humanitarian assistance,

compliance with obligations under relevant international humanitar-

ian, human rights and refugee law, and counter-terrorism measures in

full co mpliance with all obligations under international law, in parti-

cular international human rights, refugee and humanitarian law.

It urged strengthening the capacity of local police and judicial sys-

tems to protect civilians and enforce law and order through deployment

of qualiﬁed and well trained interna tional civilian police , technical assis-

tance for local police, judiciary and penitentiaries, reconstruction and

rehabilitation of institutional infrastructure , and mechanisms for mon-

itoring and reporting alleged violations of humanitarian, human rights,

and criminal law.

It stressed the importance of addressing the speciﬁc needs of women

for assistance and protection through measures to protect them from

gender-based discrimination and violence, rape, and other forms of

sexual violence; implementation of measures to report and prevent

sexual abuse and exploitation of civilians by humanitarian workers

and peacekeepers; mainstreaming of gender perspective, including the

integration of gender advisers in peace operations. It also emphasized

the need to address the speciﬁc needs of children by preventing or

stemming the recruitment of child soldiers; initiatives to secure access

Table 9.2 The performance of the international protection system (ﬁve-star

rating: 0 = no protection; 5 = highest protection)

UN Security Council **

UN General Assembly **

UN Economic and Social Council

The former CHR/Human Rights Council **

The special procedures of the HRC ***

UN human rights treaty bodies **

European Court of Human Rights ****

Inter-American Court of Human Rights ***

African Commission on Human and People’s Rights **

Arab Commission on Human Rights

National human rights institutions worldwide **

136 Protection

to war-affected children; negotiated release of children abducted in

situations of armed conﬂict; effective measures to disarm, demobilize,

reintegrate and rehabilitate children recruited or used in hostilities;

speciﬁc provisions for the pr otection of children (including w her e appro-

priate, the integration of child protection advisers in peace operations);

implementation of measures for reporting on and prevention of sexual

abuse and exploita tion of civilians by humanitarian wor kers and peace-

keepers; family reuniﬁcation of separated children; and monitoring

and reporting on the situation of children.

Finally, the Aide Memoire called for putting an end to impunity for

those responsible for serious violations of international humanitarian,

human rights, and criminal law through establishing and using effec-

tive arrangements to investigate and prosecu te serious violations of

humanitarian and criminal law; exclusion of genocide, crimes against

humanity and war crimes from amnesty provisions; and referral of

situations to international courts and tribunals.

Protection of children in armed conﬂicts

A report of the secretary-general submitted to the GA in 2004 pro-

vided a comprehensiv e assessment of the UN system response to children

affected by ar med conﬂict.

The report grouped recommendations for

improving and sustaining efforts on children and armed conﬂict

(CAAC) into four categories, which constitute the medium-term stra-

tegic priorities for the UN system to improve its response to children

affected by armed conﬂict: (a) continued vigorous advocacy for chil-

dren affected by armed conﬂict; (b) an effective and credible mon-

itoring and reporting system on child rights violations; (c) enhanced

mainstreaming of CAAC issues across the United Nations system; (d)

improved coordination of CAAC issues across the United Nations

system.

On advocacy, the report concluded that there was continuing need

for a special representative of the secretary-general (SRSG)-CAAC as

an independent advocate reporting directly to the secretary-general

and recommended the introduction of appropriate mechanisms to

measure progress against benchmarks established each year. The

mandated functions of the SRSG-CAAC should focus on the follow-

ing: integ rating children’s rights and concerns into the United

Nations’ peace and security, humanitarian and development agendas

throughout all phases of conﬂict prevention, peace-building, peace-

making, and peacekeeping activities; unblocking political impasses to

secure commitments from political actors on child protection on the

Protection 137

national and regional levels and ensuring adequate follow-up to these

commitments; and ensuring the inclusion of children and armed con-

ﬂict concerns in all relevant reports submitted to the UNSC by the

secretary-general. It called for reporting child rights violations to rele vant

bodies, such as the secretary-general, the UNSC, governments, and

regional mechanisms, and advocating the inclusion of appropriate

measures in resolutions, such as sanctions, for actors violating CAAC

norms and standards. It called for a collaborative process to produce

the secretary-general’s annual report to the UNSC on CAA C . The report

should focus on progress in applying CAAC norms and standards,

including reporting on child rights violations in situations of conﬂict;

suggestions for measures to ensure compliance with norms and stan-

dards; and high-level analysis of CAAC trends with recommendations

on improvements to the UN system response, particularly with sug-

gestions on ho w UN peace and security mechanisms can respond better

to CAAC and progress on developing a monitoring and reporting

system for child rights violations.

The document recommended producing an annual report to the GA

and the CHR, using inputs from key UN actors. The report should

include a high-level anal ytical assessment of CAAC in all conﬂict situa-

tions (i.e. not just countries on the UNSC’s agenda); progress in the

UN system’s advocacy, mainstreaming and coordination efforts on

CAAC issues; and prioritizing next steps for the UN system in

improving its response to CAAC.

The document recommended providing proactive advocacy support

to the secretary-general, heads of agencies, special representatives, resi-

dent coordinators/humanitarian coordinators (RCs/HCs), and other

high-level UN ofﬁcials, primarily through inter-agency committees such

as the Executive Committee on Humanitarian Affairs (ECHA), the

Executive Committee on Peace and Security (ECPS), the Senior Man-

agement Group, and annual meetings of RCs and HCs; co-chairing a

coordination mechanism at the UN on children affected by armed

conﬂict; and maintaining a high-proﬁle public awareness of CAAC

issues as required to achieve political advocacy objectives, including

cooperation with the Department of Public Information.

The report further urged that the advocacy role of the ERC and the

High Commissioner for Human Rights should also be systematically

resorted to in support of CAAC concerns and issues.

The report urged that a robust monitoring and reporting system for

child rights violations in conﬂict situations should be developed in three

distinct stages: developing an accepted, standardized and practical

methodology to identify, document, and verify child rights violations;

138 Protection

setting up and coordinating networks of actors to document child

rights concerns, and establishing responsibilities and procedures for

disseminating and leveraging the information.

Protection of women

In Resolution 1325(2000), the UNSC called on all parties to armed

conﬂict to respect international law applicable to the rights and pro-

tection of women and girls, especially as civilians, in particular the

obligations applicable under the Gen eva Conventions of 1949 and the

Additional Protocols of 1977, the Refugee Convention of 1951 and

the Protocol of 1967, the Convention on Elimination of All Forms of

Discrimination against Women of 1979 and the Optional Protocol of

1999, and the UN Convention on the Rights of the Child of 1989 and

the two Optional Protocols of 25 May 2000, and to bear in mind the

relevant provisions of the Rome Statute of the ICC (paragraph 9). The

council further called on all parties to armed conﬂict to take special

measures to protect women and girls from gender-based violence,

particularly rape and other forms of sexual abuse, and all other forms

of violence in situations of armed conﬂict (paragraph 10).

Protection of internally displaced persons

The Guiding Principles on Internal Displacement provide that national

authorities have the primary duty and responsibility to provide protec-

tion and humanitarian assistance to internally displaced persons within

their jurisdiction. Certain internally displaced persons, such as children,

especially unaccompani ed minors, expectant mothers, mothers with

young children, female heads of household, persons with disabilities, and

elderly persons , are entitled to protection and assistance required by their

condition and to treatment that takes account of their special needs.

All authorities and international actors should respect and ensure

respect for their obligations under international law, including human

rights and humanitarian law, to prevent and avoid conditions that

might lead to displacement of persons. In addition to general princi-

ples, the principles contain guidance on protection from displacement

(prevention), protection during displacement, humanitarian assistance,

and principles relating to return, resettlement, and reintegration.

UN ﬁeld operations and human rights: the Brahimi Report

The Brahimi Report’s wide- ranging recommendations advocated

Protection 139

 the essential importance of the UN system adhering to and pro-

moting international human rights instruments and standards and

international humanitarian law in all aspects of its peace and

security activities;

 improving respect for human rights through the monitoring, edu-

cation, and investigation of past and existing abuses;

 providing technical assistance for democratic development;

 promoting conﬂict resolution and reconciliation techniques;

 addressing variables that affect peace implementation such as

issues of ethnicity or religion or gross violations of human rights;

 addressing past violations of human rights;

 working for respect of minority rights: ‘‘Long-term preventive

strategies ... must ... work to promote human rights, to protect

minority rights and to institute political arrangements in which all

groups are represented.’’

Further, the report called for

 the building of a culture of respect for human rights;

 observing international standards for democratic policing and

human rights;

 integrating human rights specialists in peace-building missions;

 upholding the rule of law and respect for human rights through

teamwork on the part of judicial, penal, human rights and policing

experts;

 recognition of the critical role of the human rights components of

a pe ace operation for effective peace-building;

 training military, police and other civilian personnel on human

rights issues and on the relevant provisions of international

humanitarian law;

 a doctrinal shift in the use of civilian police, other rule of law

elements and human rights experts in complex peace operations

to reﬂect an increased focus on strengthening rule of law insti-

tutions and improving respect for human rights in a post-conﬂict

environment;

 human rights monitoring;

 meeting threshold conditions in the implementation of ceaseﬁre or

peace agreements, such as consistency with international human

rights standards; and

 rebuilding civil society an d promoting respect for human rights in

places where grievance is widespread, keeping in mind interna-

tional conventions and declarations relating to human rights.

140 Protection

Universal criminal jurisdiction

The Princeton Principles of Universal Jurisdiction (2001) offered a

recapitulation of international law that is relevant to the issue of

impunity. Impunity has been identiﬁed as a key issue if successful

prevention of violations of international human rights and humani-

tarian law is to be achieved. According to the principles:

(a) Univ ersal jurisdiction may be ex er cised by a competen t and ordinary

judicial body of any state in order to try a person accused of com-

mitting serious crimes under international law, provided the person

is present before such judicial body.

(b) Serious crimes under international la w include: (1) piracy; (2) slavery;

(3) war crimes; (4) crimes against peace; (5) crimes a gainst humanity;

(6) genocide; and (7) torture.

Conclusion

The protection idea is crucial to the survival of the human rights

movement. The idea that one should come to the aid of those whose

rights are at risk or are being violated is at the heart of the human

rights movement. Protection is a noble idea—but not an easy one.

Protection challenges the good faith and the efﬁciency of governments

and of the international community. The massive violations of human

rights that continue to take place in numerous parts of the world tell

us that protection is largely illusory for millions of people worldwide.

The international community must renew its resolve to strengthen

human rights protection. This requires the development of strong

national protection arrangements inside each country and efﬁcient

protection arrangements regionally and internationally. The General

Assembly’s endorsement of the responsibility to protect must be given

concrete application, particularly by the Security Council and the

Human Rights Council. The challenges of protection remain daunting

in the contemporary world.

Protection 141

10 Justice, remedy, and reparation

The World Conference on Human Rights expresses grave concern about

continuing human rights violations in all parts of the world in disregard

of standards as contained in international human rights instruments and

international humanitarian la w and about the lack of sufﬁcient and effecti ve

remedies for the victims.

(Vienna Declaration, paragraph 29)

For decades, Chile was a jewel of democracy in Latin America. Then,

in 1973, General Augusto Pinochet overthrew the democratically elec-

ted government of President Salvador Allende and pr oceeded to impri-

son, kill, torture, and ‘‘disappear’’ pe ople by the thousands.

While he

ruled, General Pinochet had powerful backers.

Even after he left

ofﬁce, the law could not reach him. But then a Spanish prosecutor,

imbued with contemporary human rights ideas, sought to extradite

him to Spain for prosecution in connection with the deaths of Spanish

nationals. After Pinochet went to the United Kingdom for medical

treatment, the Spaniards sought his extradition to Spain. The case

reached the highest court in England, the House of Lords, which

made important pronouncements on contemporary human rights

ideas. But General Pinochet was allowed to return to Chile on a

technicality. Chilean prosecutors then sought to bring Pinochet to

trial, but he evaded this on grounds of ill health and ended his years

ﬁghting off prosecution in his own country. The principle of justice

had caught up with him—just as it did with Slobodan Milosevic and

Charles Taylor.

The idea of justice is similarly at the heart of two major interna-

tional campaigns currently under way: the campaign of the descendants

of African slaves to be compensated for the crimes perpetrated against

their ancestors and the campai gn of indigenous peoples for justice

against genocides that were perpetrated against their ancestors.

One would think it a simple and compelling idea—that those who

have suffered gross violations of human rights are entitled to justice in

their own countries if available or in the international community if

not.

But often people do not receive justice, remedy, or reparation.

The World Conference on Human Rights bemoaned this fact, as

could be seen in the epigraph which opens this chapter. The human

rights movement is swimming against strong currents of barbarism

and bad governance. And yet, it tries to lay the foundations for justice,

remedy, and reparation. This ﬁnal chapter discusses three ideas that

have been at the heart of the international human rights movement

since the UN was established but that have only been given limited

practical expression worldwide thus far. The ﬁrst two ideas, closely

related to justice and remedy, are that victims of human rights viola-

tions are entitled to a remedy and to redress and that victims of gross

violations of human rights are entitled to have those responsible

brought to justice. It is only recently since the international criminal

tribunals and the ICC were established that these ideas are being given

some practical, albeit limited, application.

The third idea—compensation or reparation for violations of

human rights or for gross violations—is implicit in earlier ideas of

justice and remedy. It is only recently that it has been explicitly ela-

borated in the international community with the GA’s adoption of a

set of guidelines on this topic in 2006.

The Second American Restatement of the Foreign Relations Law of

the United States, as was discussed earlier, is considered an authoritativ e

summary of contemporary interna tional la w on human rights because of

the high quality and objectivity of the experts who drafted it. It provides

a succinct statement of the law on remedies in the following terms:

 A state party to an international human rights agreement has the

remedies generally available for violation of an international agree-

ment, as well as any special remedies provided by the agreement,

or against any other state party violating the agreement.

 Any state may pursue international remedies against any other state

for violating the customary international law of human rights.

 An individual victim of a violation of a human rights agreement

may pursue any remedy provided by that agreement or by other

applicable international agreements.

Since this document was issued in 1987, the law has evolved and crys-

tallized further, and it is now possible to offer the following additional

propositions:

Justice, remedy, and reparation 143

 A victim of a human rights violation is entitled to redress and,

where called for, reparation in accordance with the international

law of human rights and human rights treaties.

 The forms of redress vary depending on the facts of the case and

as considered just in the eyes of the impartial decision-maker.

 The repara tion or compensation varies depending on the facts of the

case and as considered just in the eyes of the impartial decision-mak er.

 Those responsible for international crimes, such as genocide, ethnic

cleansing, war crimes , crimes against humanity, and torture , are sub-

ject to international jurisdiction. If not tried objectivel y and seriously

in a national court of their home country, the responsible indivi-

duals may be brought to justice before the courts of any other

country or before the ICC, where its jurisdiction is applicable.

 In situations where gross violations of human rights have occurred,

the victims and their families are entitled to a serious investigation

to ascertain and record what occurred, identify those responsible,

and indicate paths of reconciliation or justice.

 The people of each country must decide freely which path they

wish to follow to achieve reconciliation or justice.

The following pages examine justice, reme dy, and reparation more

closely.

Justice

Discussing justice, liberty, and equality, the philosopher Mortimer

Adler argued for the sovereignty of justice:

[W]e must note the sovereignty of justice. It regulates our thinking

about liberty and equality. Without its guidance, certain errors are

unavoidable and certain problems insoluble. [J]ustice is the supreme

value, a greater good than either liberty or equality, and one that

must be appealed to for the rectiﬁcation of errors with regard to

liberty and equality.

He continued:

Only justice is an unlimited good. ... One can want too much

liberty and too much equality—more than is good for us to have

in relation to our fellow men, and more than we have any right to.

Not so with justice. No society can be too just; no individual can

act more justly than is good for him or his fellowmen.

144 Justice, remedy, and reparation

Those who have suffered gross violations of human rights are entitled

to justice. In the international human rights movement, there is growing

emphasis that victims of gross violations and/or their families have the

right to a process that establishes the facts of what took place and

draws lessons to prevent similar occurrences in the future. This is

sometimes given the label of transitional justice.

According to the organization Transitional J ustice, the major approa-

ches to transitional justice include the following:

 domestic, hybrid, and international prosecutions of perpetrators

of human rights abuse;

 determining the full extent and nature of past abuses through truth-

telling initiatives, including national and international commissions;

 pr oviding reparations to victims of human rights violations, including

compensatory, restitutionary, reha bilita tion, and symbolic repara tions;

 institutional reform, including the vetting

of abusive, corrupt, or

incompetent ofﬁcials from the police and security services, the

military, and other public institutions, including the judiciary;

 promoting reconciliation within divided communities, including

working with victims on traditional justice mechanisms and for-

ging social reconstruction;

 constructing memorials and museums to preserve the memory of

the past;

 taking into account gendered patterns of abuse to en hance justice

for female victims.

The prosecution and trial of those accused of genocide, ethnic cleans-

ing, crimes against humanity, war crimes, and torture is considered

essential to prevent such acts in the future. International law prohibits

amnesties for such international crimes, and tribunals such as those

established to deal with crimes in Cambodia, Rwanda, Sierra Leone,

and the Former Yugoslavia are adding important new practice and

jurisprudence in the ﬁght against criminal violations of human rights.

Since the ICC was established, the court’s prosecutor has initiated

prosecutions against persons accused of international crimes in Darfur,

Sudan, the Democratic Republic of the Congo, and norther n Uganda.

The former presidents of Liberia and the Former Yugoslavia have

appeared before ad hoc international criminal courts. These ground-

breaking precedents illustrate that those responsible for human

rights violations, even at the highest levels, may be brought to justice.

The ICC is a key human rights institution that deserves worldwide

support.

Justice, remedy, and reparation 145