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2010 | Cecily Rose; ‘An Emerging Norm: The Duty of States to Provide Reparations for Human Rights Violations by Non-State Actors’

in: 33 Hastings International and Comparative Law Review 307 2010

In the context of ongoing controversy as to which actors bear the obligation to make reparations for conflict-related human rights violations, harm done by violent non-State actors raises particularly difficult questions. This author enumerates the practical reasons why victims of non-State perpetrators (e.g. rebel militias) stand almost no chance of obtaining reparations from them. Rose argues that an international norm is emerging whereby States, in certain circumstances, have a legal duty to provide reparations for violations by non-state actors.

This article looks firstly at the provisions of The Convention on the Rights of the Child (1989), The Internal Covenant on Civil and Political Rights (1966) and the European Convention on the Compensation of Victims of Violent Crimes (1983), comparing their relative weakness and strength in assigning the obligation to make reparations.  Rose examines also the 2005 ‘Basic Principles and Guidelines on the Right to Reparation’ (see elsewhere in this section), pointing to its avoidance of the issue of the the bearer of responsibility and its consignment of this matter to ‘politics and policy making’. The practice of the Inter-American Court contrast strongly with the Conventions just named, with its robust allocation to the State of the obligation to exercise due diligence in preventing, investigating, punishing and adequately compensating for violations of human rights.  

 The author shows how the IACHR’s jurisprudence explicitly influenced the Truth and Reconciliation Commissions in Peru (2001), Sierra Leone (2003) and Liberia (2005 Truth and Reconciliation Act). Implementation in all three cases has however fallen far short of their potential.