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