Untitled - International Commission of Jurists

impartial judiciary able to adjudicate and review state action that may infringe on
human rights and provide a judicial remedy. There are a further four states duties to
victims and the public:
(i)
(ii)
(iii)
(iv)
to investigate violations;
to prosecute and punish perpetrators;
to establish and make public the truth about violations; and
to ensure reparations.
Reparations duties encompass the right to restitution, compensation, rehabilitation,
satisfaction, and guarantees of non-repetition, 380 these obligations constitute part of
the obligation to undertake legislative and administrative measures and to cease any
ongoing practice of violations.
As noted, these obligations are binding on the state as a whole, meaning the
executive, legislature and the judiciary. The absence of any of these elements
represents a failure of the state to fulfil its obligations under international law. 381
Commissions of inquiry need to be understood in the light of these duties, particularly
in terms of their relationship with the prosecutorial system and criminal courts.
The criminal justice system is intended to effectuate the state’s repudiation of alleged
crimes, particularly where they constitute grave human rights violations that are also
crimes under international law. A trial in a criminal court before a judge determines
the guilt or innocence of the accused with regard to a specific set of facts determined
in a court of law. The truth is therefore established beyond a reasonable doubt, but
this truth may not be the whole truth with which the public is concerned.
There are cases where the nature or scale of the crime leads to demands for a public
inquiry that looks beyond individualized guilt to underlying causes, to the level of
state responsibility, and then to measures to prevent the recurrence of this public
harm. A criminal court is not designed for this purpose. Similarly, there may be cases
where the State, as the alleged perpetrator, is unable to fulfil its duty to the public
through normal mechanisms. This may be due to lack of competence, conflicts of
interest, the lack of public confidence in those charged to carry out the investigation,
and related political interference.
The UN Principles on Remedy and Reparations 382 and the UN Principles on
Impunity 383 set out in detail the principles and standards governing commissions of
inquiry, including truth commissions, in order to ensure their proper role, particularly
vis a vis the criminal justice system, for publicly establishing the truth regarding a
380 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, A/RES/60/147, 21 March 2006.
381 International Commission of Jurists,
382 Resolution adopted by the General Assembly, Basic Principles and Guidelines on the Right to a
Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and
Serious Violations of International Humanitarian Law, 21 March 2006.
383 Commission On Human Rights, Updated Set of principles for the protection and promotion
of human rights through action to combat impunity, E/CN.4/2005/102/Add.1, 8 February 2005.
108