Redress without fault? UN to promote ‘automatic’ state reparations for terrorist attacks

by Rhodri C. Williams

The Guardian informs about a new report slated for release in June by the UN’s special rapporteur on counter-terrorism and human rights, Ben Emmerson. The report is said to propose “automatic legal rights to compensation and rehabilitation” for terror victims “under far-reaching changes to rebalance international law in favour of victims”:

The Emmerson report, if accepted, would have the effect of obliging all UN states to adopt a uniform set of standards, establishing more firmly in international law the principle that terrorist acts amount to violations of the human rights of the victims, irrespective of the question of direct or indirect state responsibility.

Sound intriguing? At first blush, this certainly seems to go beyond developments such as recent European Court of Human Rights jurisprudence requiring states to provide reparation to victims of foreseeable disasters that the state did not take reasonable steps to mitigate (on which, see Walter Kälin and Claudine Haenni here).

The text of the article implies a scoop, breathily citing details of the report “which have been obtained” by the Observer. However, fortunately for the rest of us, the entire draft report can be “obtained” by downloading it directly from the Rapporteur’s website. And it is worth a read, particularly paragraphs 49-63 on reparations.

Interestingly, the Special Rapporteur has not created an entirely ex gratia framework, but rather extended the notion of the state’s positive obligation to prevent terrorism based on a victim-centered approach. The idea that victims have undertaken an involuntary sacrifice on behalf of the state is endorsed (para 54), and the fact that it is virtually impossible to seek reparations from the perpetrators of terrorism is asserted as “perhaps the most fundamental point” (para 56). However, the existence of a human rights-based ‘duty to protect’ from terrorism appears to play a significant role:

…the determination of State responsibility for an alleged failure to take positive operational steps to prevent an act of terrorism can be fraught with evidential difficulties. If the approach advocated by the Special Rapporteur is followed, States will be under an obligation to provide reparation without imposing an additional burden on the victims or their next-of-kin to prove conclusively that public officials were at fault. (para 55)

Curiously, the report cites the Van Boven-Bassiouni Principles (at para 51), but only on the basic point of substantive reparations for rights violations, but not the implication in paragraph 15 thereof that the state should assume up-front responsibility for repairing rights violations by non-state actors, with the ability to later seek indemnification from the real perpetrators:

In accordance with its domestic laws and international legal obligations, a State shall provide reparation to victims for acts or omissions which can be attributed to the State and constitute gross violations of international human rights law or serious violations of international humanitarian law. 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.

The section ends with an interesting discussion of the significant body of domestic law and practice that already exists in this area. According to the Guardian, the report is to be “presented to the UN human rights council in Geneva on 20 June and the general assembly in New York on 28 June” and already enjoys significant backing. Definitely one to watch.


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2 responses to “Redress without fault? UN to promote ‘automatic’ state reparations for terrorist attacks

  1. Pending some efforts to actually figure out where the above report ended up in the UN pipeline, I was recently reminded that the IASC Framework on Durable Solutions for IDPs contained a similarly nuanced rationale for setting out a general state obligation to rebuild IDPs’ destroyed homes (at paragraph 81):

    “IDPs who want to return to houses that have been destroyed have the possibility of having them rebuilt or, where this is impossible, to be provided with an alternative. In some cases, the authorities will have a legal obligation to rebuild the house because they are responsible for its destruction (for instance, where houses were destroyed during a military operation that violated international humanitarian law or due to a disaster because of the authorities’ failure to adopt necessary and reasonable disaster risk reduction measures). In other cases, there is no obligation in a legal sense, but returnees still have to have their houses reconstructed to achieve a durable solution that provides an adequate standard of living.”

    Message to the state, in other words: do it as a remedy if you wrongfully destroyed it yourself. If not, do it as a special measure corresponding to the particular obstacles IDPs with destroyed homes face in achieving the right to an adequate standard of living (the cited paragraph, above, falls within the discussion of ‘access to livelihoods’ as a criterion for durable solutions, but it includes a footnoted reference at the end to the earlier section on achievement of an adequate standard of living as a parallel criterion).

    For a fuller analysis of the Framework, see: http://wp.me/pNZgJ-31

  2. Pingback: Chilean court orders compensation for tsunami damages | TerraNullius

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