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Statement by Professor Alfred de Zayas, Geneva School of Diplomacy

Dear Attorney General Clark, Ladies and Gentlemen,

The Universal Periodic Review of the Human Rights Council is an important mechanism, which gives civil society opportunities like this one – to articulate our concerns with regard to a particular country and to try to contribute to a constructive dialogue and formulate recommendations how to assist the victims.

We do this in the same spirit as we follow the examination of reports by the treaty bodies, most importantly by the UN Human Rights Committee pursuant to article 40 of the International Covenant on Civil and Political Rights.

The United States already submits itself to the scrutiny of several treaty bodies, including the Human Rights Committee.  Following examination of the US reports in 1995 and 2006, the Committee identified a number of concerns and issued specific recommendations.  It is the function of the follow-up procedure to see to what extent the Committee’s concerns have been addressed and its recommendations implemented.

What drives the United Nations and the regional human rights monitoring systems in this common endeavour is the noble hope to improve the lot of human beings by monitoring, investigating, discussing the positive and negative aspects of each country’s record.  We have a sacred commitment to affirm human dignity and to vindicate the conviction that individuals and groups are bearers of individual and collective rights, and that whenever these rights are violated, the victims must have a justiciable right of redress. 

Indeed, all human rights derive from human dignity, and human dignity encompasses many fundamental rights that are seldom written about -- these are among others the right to identity, the right to one's culture, the right to truth, the right to access to all information, the right to food, the right to peace, and the right to a Remedy.

Human Rights are violated in all countries of this earth.  They are violated sometimes in secrecy, and sometimes openly.  Thanks to a vibrant ngo-community and a sensitized civil society, people all over the world are demanding their rights.  Naming and shaming is only part of the strategy.  If the UPR procedure is going to have credibility, it is important that it be conducted fairly, with intellectual honesty, without double-standards, without selectivity.  It is crucial that the shared human dignity of all human beings, and the right of all victims to our attention and compassion be vindicated.  In the UPR there must not be first and second-class victims.  We owe respect to all.

But it is not enough to merely criticise a State for violating human rights.  It is not enough to condemn the impunity of the perpetrators.  It is far more important to devote time to address the pressing needs of the victims, to ensure that there are adequate mechanisms to offer the victims a measure of rehabilitation and redress.

Indeed the principle of reparation is a general principle of law, that kind of fundamental norm, which the International Court of Justice identifies as a source of law in article 38 of its statute.

This morning I will endeavour to revisit the applicable norms when it comes to the individual and collective right to a remedy. And when I say remedy I mean both the judicial and/or administrative mechanism to demand reparation, the obligation of every country under the rule of law to provide access to such mechanisms and the responsibility to implement decisions on reparation.

Article 2 of the International Covenant on Civil and Political Rights stipulates:

" 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted."

This article engages the State to do a number of things.  It must create a mechanism of redress, and it must make sure that judgments are enforced.  Some States parties to the ICCPR still do not have the proper mechanisms and some of them try to weasel out of their responsibility by claiming that the ICCPR is not self-executing.

I believe that in the case of the United States of America, Article VI of the US Constitution clearly requires us to give effect to international treaties.  It stipulates:  “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land”.  This includes all human rights treaties ratified by the US.  It is time to abandon the bad habit of claiming that the ICCPR is not self-executing.  If it is still not, 18 years following ratification, then let’s do whatever is necessary to ensure its full applicability in the domestic legal order.

The United States ratified the ICCPR under President George Bush Sr. in 1992 and by now one would expect that all of its provisions have been transformed and incorporated into domestic U.S. law, thus rendering individual claims concerning human rights violations justiciable.  This would also be consistent with the precedent established in the 1900 judgment of the United States Supreme Court in the Paquete Habana case, to the effect that U.S. courts should take international law into account when deciding cases that involve issues of international law.

Let me now remind you of the 2004 General Comment of the Human Rights Committee on Article 2 of the Covenant, which stipulates:

The obligations of the Covenant in general and article 2 in particular are binding on every State Party as a whole. All branches of government (executive, legislative and judicial), and other public or governmental authorities, at whatever level - national, regional or local - are in a position to engage the responsibility of the State Party. The executive branch that usually represents the State Party internationally, including before the Committee, may not point to the fact that an action incompatible with the provisions of the Covenant was carried out by another branch of government as a means of seeking to relieve the State Party from responsibility for the action and consequent incompatibility. This understanding flows directly from the principle contained in article 27 of the Vienna Convention on the Law of Treaties, according to which a State Party ‘may not invoke the provisions of its internal law as justification for its failure to perform a treaty’. Although article 2, paragraph 2, allows States Parties to give effect to Covenant rights in accordance with domestic constitutional processes, the same principle operates so as to prevent States parties from invoking provisions of the constitutional law or other aspects of domestic law to justify a failure to perform or give effect to obligations under the treaty. In this respect, the Committee reminds States Parties with a federal structure of the terms of article 50, according to which the Covenant’s provisions ‘shall extend to all parts of federal states without any limitations or exceptions’.

In the context of providing remedies to victims of human rights violations, it is worth recalling that mechanisms must be created and access to these mechanisms, including courts and tribunals, must be ensured.  Article 14 of the ICCPR stipulates in relevant part:

“All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”
Turning now our attention to the Principle of reparation for violations of international law, including human rights law, it bears repeating that this principle is not a new normative development attributable to the work of the League of Nations, or of the United Nations or of the International Law Commission.  The obligation to make reparation for violations of international law is a general principle of law as affirmed by the Permanent Court of International Justice in its 1928 judgment in the Chorzow Factory case [1] which held:
“It is a principle of international law, and even a general conception of the law, that any breach of an engagement involves an obligation to make reparation.”
What kind of remedies can be offered to victims of human rights violations:  First of all victims want recognition of their status as victims, they want to have an apology for the material and moral injury endured.  They also need rehabilitation, restitution, compensation.
Article 9, paragraph 5, stipulates: Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
This article must have some meaning.  Let me draw attention to the case of Mr. Maher Arar, a Canadian who was unlawfully detained while transferring planes at Kennedy Airport in New York on his way from Zurich to his family in Canada.  He was then flown to Jordan and taken by car to Syria for interrogation, where he was subjected to torture for nearly one year, until his torturers decided he knew nothing and simply returned him.  This man was a victim of multiple violations of the ICCPR by the United States, Jordan and Syria – and yet he has received no compensation from the U.S.
Another principle of reparation is contained in article 14, paragraph 6, of the Covenant, which stipulates:  “When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. “
In this context I think of the kidnapping in Mexico of the medical doctor Humberto Alvarez Machain by US DEA agents acting illegally in Mexico, brought to the United States and subjected to a criminal trial in which he was acquitted.  Having wasted years of his life, he attempted to get compensation in the United States and took his case all the way up to the US Supreme Court, which on 1 December 2003 ruled against him because the Federal Alien Tort Claims Act had an exception to the waiver of sovereign immunity for claims arising in a foreign country.
Now let me briefly revisit some recent United Nations Developments in the field of State Responsibility.
Article 31 of the International Law Commission's Draft Articles on State Responsibility, which essentially reflect pre-existing international law, stipulates that “the responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.” 
Article 34 stipulates further that “full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation or satisfaction, either singly or in combination.”
More concretely, in the Iraqi case, where enormous destruction was visited on the cultural heritage of thousands of years, the Hague Convention for the Protection of Cultural Property of 1954[2] and its Protocols give us guidance.
Among other general principles of law that apply in the context of the obligation to make reparation are the principle of “good faith”, the prohibition of “unjust enrichment” the rules on “estoppel”, the principle “ex injuria non oritur jus”, which provides that no rights can be derived from a prior violation of law.  
Law, however, is not mathematics.  And the norms – as good as they may look on paper – are certainly not equivalent to their enforcement.  On the other hand, the non-enforcement of norms, even for a prolonged period of time, does not detract from their validity. 
As far as compensation is concerned, Article 36 of the Articles on State Responsibility[3] stipulate the obligation of a State “to compensate for the damage caused … insofar as such damage is not made good by restitution.”
As far as satisfaction is concerned, Article 37 stipulates “The State responsible for an internationally  wrongful act is under an obligation to give satisfaction for the injury caused by the act insofar as its obligation cannot be made good by restitution or compensation. Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality.”
In this connection it is useful to recall that in 1993 President Bill Clinton issued an apology[4] to the people of Hawaii for the crimes and abuses committed in connection with the overthrow of the legitimate government of the Hawaiian Queen one hundred years earlier, in 1893.  And on 19 May 2010 Kansas Senator Sam Brownback read a Congressional Resolution apologizing of “ill-conceived policies” and acts of violence against American native peoples by the U.S. Government. This Congressional Resolution goes back to a stronger text adopted by the House of Representatives in 2004 and signed in a watered-down version by President Barack Obama in December 2009.  The Resolution contains regrettably the following disclaimer:
“Nothing in this Joint Resolution authorizes any claim against the United States or serves as a settlement of any claim against the United States.”
By contrast, the Australian Government has been more forthcoming in their attempts to make reparation to the Aborigines of that island continent. On 13 February 2008 Prime Minister Kevin Rudd issued an apology to the Aboriginal people of Australia for the many crimes committed against them in the 200 years that white Europeans have been in Australia.  It should be noted that title to huge areas of Australia has been returned to the Aborigines, who are now administering these territories in cooperation with Australian authorities in Uluru, Kata Tjuta, Kakadu, Queensland etc. 
Thus, even “historical inequities” can be partly redressed provided that  there be a modicum of good will.  Indeed, over the past decades the various governments of Germany have issued  apologies to the governments and peoples of Poland, Czechoslovakia, Belgium, the Netherlands, France, etc. in connection with the Holocaust and other Nazi crimes.  Germany has also made meaningful reparation in the form of both restitution and compensation to the survivors of the victims of the genocide.
In order to obtain reparation, the Iraqis who suffered violations of their rights in connection with the 1991-2003 sanctions regime, or in connection with the illegal war of 2003 (I recall that Kofi Annan in more than one occasion referred to the Iraq War as an illegal war) should also appeal to international solidarity and to the erga omnes obligation not to recognize the effects of war crimes and crimes against humanity.
As to erga omnes obligations, one recalls Article 10 of the United Nations Draft Declaration on the Illegality of population transfers of August 1997 stipulates:
“Where acts or omissions prohibited in the present Declaration are committed, the international community as a whole and individual States, are under an obligation: (a) not to recognize as legal the situation created by such acts; (b) in ongoing situations, to ensure the immediate cessation of the act and the reversal of the harmful consequences; (c) not to render aid, assistance or support, financial or otherwise, to the State which has committed or is committing such act in the maintaining or strengthening of the situation created by such act. “[5]
Of particular relevance to the Iraqis are the 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, adopted  by the General Assembly in its Resolution 60/147 of 16 December 2005.[6]  
Section VII, paragraph 10 of the Basic principles stipulates: “Remedies … include the victim’s right to the following as provided for under international law:
“(a) Equal and effective access to justice
(b) Adequate, effective and prompt reparation for harm suffered,
(c) access to relevant information concerning violations and reparation mechanisms.”
Section IX, paragraph 15 stipulates:
“  Adequate, effective and prompt reparation is intended to promote justice by redressing gross violations of international human rights law or serious violations of international humanitarian law. Reparation should be proportional to the gravity of the violations and the harm suffered. “
Paragraph 16 stipulates:
“States should endeavour to establish national programmes for reparation and other assistance to victims.”
Paragraph 17 stipulates:
“States shall, with respect to claims of victims, enforce domestic judgements for reparation against individuals or entities liable for the harm suffered and endeavour to enforce valid foreign legal judgements for reparation in accordance with domestic law and international legal obligations. To that end, States should provide under their domestic laws effective mechanisms for the enforcement of reparation judgments”
Paragraph 19 stipulates:
“Restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. “
Paragraph 20 stipulates:
“Compensation should be provided for any economically assessable damage as appropriate and proportional to the violation and the circumstances of each case… such as “(a) physical or mental harm, (b) lost opportunities, including employment, education and social benefits, (c) material damages and loss of earnings, including loss of earning potential; (d) moral damage; (e) costs required for legal or expert assistance, medicine and medical services and psychological and social services.”
Section XI is of particular relevance.  Paragraph 25 stipulates “the application and interpretation of these Basic Principles and guidelines must be consistent with international human rights law and be without any discrimination of any kind or on any ground, without exception.”
These provisions, however, are only what is termed soft law.  It is for international solidarity and for the Human Rights Council to strengthen the justiciability of claim of human rights violations.
I do not underestimate the obstacles in obtaining reparation for the injuries suffered in connection with the Iraqi sanctions and the subsequent war and occupation.  One problem is that of non-self-executing international norms.  This is why Austria and Germany have adopted laws related to the restitution of objects to victims, as has the United States in the form of its Law on Restitution for the World War II Internment of some 120,000 Japanese-Americans and Aleuts.  It is the responsibility of politicians to propose such legislation in Congress.
There is no doubt that the United States bears responsibility for the destabilization of the situation of countries in the Middle East, particularly Iraq and Afghanistan.  Its military presence and the presence of private military and security companies engages its international responsibility.
The Wikileaks concerning grave violations of human rights and international humanitarian law in Iraq and Afghanistan are a legitimate subject of discussion for the UPR.
But it should not be limited to naming and shaming.  What is crucial is to identify ways and means of helping the victims.

One form of reparation to victims is the investigation of the events, and the right to truth.

The UN Special Rapporteur on torture, Professor Manfred Nowak said last week:

“In relation to what now has been revealed by WikiLeaks, it confirms what we know, what we have heard, many allegations about the brutality and the torture that were systematically practiced by Iraqi security forces and also irregular militias. And I think what is shows very clearly is that the Bush and also the Obama Administration knew and do know when they are handling over detainees under US custody to Iraqi security forces, that there is a serious risk of being subjected to torture.”

The UN High Commissioner for Human Rights Navi Pillay similarly urged the US and Iraq to probe Wikileaks torture claims.  She said:  “the US and Iraqi authorities should take necessary measures to investigate all allegations made in these reports and to bring to justice those responsibible for unlawful killings, summary executions, torture and other serious human rights abuses.” 

I would like to go beyond that statement and suggest that appropriate measures must be taken to assuage the suffering of the victims and their families.
First, the victims must be able to go to court and sue the Iraqi and U.S. authorities and demand rehabilitation and reparation.  I consider it a disgrace that many victims of torture in Guantanamo and elsewhere, the victims of of indefinite detention , of extraordinary rendition, have been given the run-around and have not received any form of redress.  I strongly disagree with decisions of many United States courts, e.g. the Court of Appeals for the Ninth Circuit, which on 8 September 2010 dismissed the cases of Binyam Mohamed, Abou Elkassim Britel et al. because of the so-called state secrets doctrine.
In 2008 I interviewed an Al Jazeera journalist who was illegally arrested in the border region between Afghanistan and Pakistan and spent more than 6 years in Guantanamo, where he was subjected to torture .  He was going to sue the United States for compensation.  I have not learned that he has been successful.  
It is obscene to leave victims of gross violations of human rights out in the cold.  The U.S. Government should establish a special tribunal to look into these allegations and finance a Fund to provide urgent assistance to the victims.
I dare recall the Yugoslav wars of the 1990s and the Dayton Accords of December 1995 which the United States negotiated to end the conflict in Bosnia and Herzegowina. Annexes VI and VII are of particular relevance.  The Human Rights Chamber for Bosnia and Herzegovina established threunder examined some 15,000 cases from victims of gross violations of human rights and international humanitarian law.  This Chamber facilitated the restitution of property to victims, compensation and the right to return “in safety and dignity”.   Maybe some scheme of this nature should be devised to provide transitional justice to the peoples of Iraq and Afghanistan.
I should also like to mention the possibility of entrusting the United Nations with the task of administering a Special Fund for Iraqi Victims.  Already the Office of the UN High Commissioner for Human Rights administers several funds, e.g. for the Victims of Torture and for indigenous peoples.  This experience would provide a blueprint for an Iraqi United Nations Fund.
I thank you for your attention.
Professor Dr. Alfred de Zayas
Geneva School of Diplomacy

[1] Publications of the Permanent Court of International Justice
Series A - No. 9; Collection of Judgments
A.W. Sijthoff’s Publishing Company, Leyden

[3] Adopted in second reading 2001.
[4] Resolution 19, 103d U.S. Congress, 23 November 1993.
[5] E/CN.4/Sub.2/1997/23.

Alfred de Zayas, « Human Rights and Indefinite Detention » in International Review of the Red Cross 2005, pp. 15-38.$File/irrc_857_Zayas.pdf

The Human Rights Chamber for Bosnia and Herzegovina.  Digest of Case Law.  N.P.Engel Publishers, Kehl am Rhein 2004.


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