Tag Archives: terrorism

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.

The view from Sarajevo, 12 September 2001

by Rhodri C. Williams

On the tenth anniversary of 9-11, I thought it might be more appropriate to post on what I thought then than what I think now. Then was Sarajevo, working on property restitution with the OSCE, my then girlfriend (now wife) ‘A-L’ in New York doing an LLM. What to say about the decade that followed? Turns out Ehud read the tea leaves better than I did, I guess. My endless gratitude to ‘H’ for having a proper filing system and digging this ancient email up.

During World War II, a fighter on patrol got lost in fog and hit the Empire State Building.  It made a big hole that was patched and life went on.  Thats the first thing I thought of when my boss called me in my office to tell me the news yesterday afternoon.  Simultaneously, some other part of my mind was tracking A-L’s morning bus route past the twin towers.  The rain was pouring down outside, and the email I was typing on the stage during which an administrative decision becomes executable under Bosnian law stopped in its tracks.

CNBC was the only channel we could get in the guard room, which was already packed with colleagues.  Smoke was pouring out of both towers into a hazy blue New York sky, the likes of which had greeted me so many bleary mornings on the way to law school.  As the Pentagon caught fire and the south tower went in a vast cloud of smoke, the world ground and slowly rotated from its bearings.

Anything was possible.  The urban architecture of the eastern seaboard was steadily being demolished in paced five minute blasts.  Every airplane in the sky had gone mad.

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