Investigation, Prosecution, Remedy: Accountability For Human Rights Violations In The War On Terror

Report

Investigation, Prosecution, Remedy: Accountability For Human Rights Violations In The War On Terror

4. Redress and remedy for victims of human rights violations

International law requires the USA to provide the victims of violations with remedies that are not only theoretically available in law, but are actually accessible and effective in practice.30 Victims are entitled to equal and effective access to justice; adequate, effective and prompt reparation for harm suffered; and access to relevant information concerning violations and reparation mechanisms. Full and effective reparation includes restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. In the case of detainees held in the CIA secret detention program, for example, acknowledgement of their detention would be a necessary part of redress.

Restitution seeks to restore the victim to the situation he or she was in before the violation, and could 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 cover any economically assessable damage, and rehabilitation should include medical and psychological care as well as legal and social services. Guarantees of non-repetition could include, among other things, reviewing and reforming laws that contribute to or allow the violations to take place. Among possible elements of satisfaction are:

  • effective measures aimed at the cessation of continuing violations;

  • verification of the facts and full and public disclosure of the truth;

  • establishing the fate and whereabouts of people who have disappeared;

  • acknowledgement of the detention of those held in the CIA secret detention program and subsequently released;

  • an official declaration or judicial decision restoring the dignity, reputation and rights of the victim;

  • a public apology, including acknowledgement of the facts and acceptance of responsibility; and

  • judicial and administrative sanctions against perpetrators of human rights violations.

To ensure that the right to remedy and redress is effective as required by international law, any invocation of state secrets privilege that might prevent a victim of torture or other ill-treatment, arbitrary detention, unfair trial, enforced disappearance, or other human rights violations from establishing the violation and obtaining an effective remedy, must be precluded.

As already stated above, rejecting impunity is a crucial step for governments to take in preventing recurrence of human rights violations. The right of victims to remedy, including non-repetition, also demands steps such as:

  • Prohibiting the provision of information to foreign governments, the posing of questions to detainees held abroad or other participation in interrogations, and other intelligence activities where there is a substantial risk that it will contribute to unlawful detention, torture or other ill-treatment, enforced disappearance, unfair trial or the imposition of the death penalty;

  • Prohibiting any use, in judicial or other proceedings, of information or evidence obtained by torture or other ill-treatment or other serious violations of human rights;

  • Not transferring anyone to the custody of the agents of another state, or facilitating such transfers, unless the transfer is carried out under judicial supervision and is in line with international standards;