178 / 464
164
MARTIN FAIX
CYIL 6 ȍ2015Ȏ
organisation? This is the most central question for victims of human rights violations
committed by international organisations and also the main question to be explored
in this contribution.
The discussions marking the shift towards a victims’ perspective and exploring
the issue of an individual right to reparation are not new, at least since Theo Van
Boven’s
Study on Restitution, Rehabilitation and Compensation for Gross and Systematic
Violations of Human Rights
.
9
However, these studies focused rather on an individual
right to reparation against States. This is understandable, as it is inherent to human
rights as a concept to consider their violations from a victim’s perspective;
10
but the
traditional concept of international law was based on the premise that States are
the only subjects of international law, and anchoring human rights protection in
international law resulted naturally in a State-centred approach and understanding of
human rights.
11
Hence States were originally at the international level the only entities
to guarantee, apply, implement but also to violate human rights. Consequently, also
the question of secondary rights, including the issue of individuals’ right to remedy
and reparation has been developed and discussed with regard to and against states.
Romani
even claims that “
non state actors breach human rights but international law
only pays attention and gives legal consequences to the breaches of human rights by states
”.
12
However, human rights breaches committed by international organisations and their
steadily increasing capacity to do so underline the necessity of exploring whether this
statement is still true, or whether we are facing a conceptual change in international
law towards the victims’ perspective also in relation to non-state entities, including
international organisations.
The general issue of accountability of international organisations, also towards
individuals, can be considered as one of the most discussed issues in recent years.
13
9
UN Sub-Commission on the Promotion and Protection of Human Rights,
Study concerning the right to
restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental
freedoms: final report / submitted by Theo van Boven, Special Rapporteur
, 2 July 1993, E/CN.4/
Sub.2/1993/8; see also for example: RANDELZHOFER, Albrecht, TOMUSCHAT, Christian (eds.),
State Responsibility and the Individual: Reparation in Instances of Grave Violations of Human Rights
, The
Hague: Martinus Nijhoff Publishers, 1999; ULRICH, George, BOSERUP KRABBE, Louise (eds.),
Reparations: redressing past wrongs
, The Hague: Kluwer Law International, 2003; BASSIOUNI, M.
Cherif, International Recognition of Victims’ Rights.
Human Rights Law
Review, 2006, Vol. 6, pp. 203-
279; BUYSE, Antoine. Lost and Regained? Restitution as a Remedy for Human Rights Violations in
the Context of International Law.
Zeitschrift für ausländisches öffentliches Recht und Völkerrecht
, 2008,
Vol. 68, pp. 129-153.
10
NOWAK, Manfred. The Right to Reparation of Victims of Gross Human Rights Violations, in:
ULRICH, George, BOSERUP KRABBE, Louise (eds.),
Reparations: redressing past wrongs
, The Hague:
Kluwer Law International, 2003, pp. 275-309, at p. 279.
11
NOWAK, Manfred.
Politische Grundrechte
, Vienna, Springer Verlag, 1988, p. 27
et seq
.
12
ROMANI, C. F. de Casadevante.
International Law of Victims
, Heidelberg: Springer Verlag, 2012, p. 4.
13
The studies address issues such as human rights violations by the UN administration of Kosovo
(UNMIK) or recent events such as litigation against the UN for a cholera outbreak in Haiti.
Cf.