The Victims of Others: The obligation of States to repair victims of violations of economic, social and cultural rights perpetrated by non-State actors

Abstract

The present research was inspired by the chance encounter of an important dissonance between 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 and Uganda’s nascent transitional justice policy. The latter foresaw reparations for all victims of Uganda’s civil wars while the former stated that customary international law merely encouraged but did not oblige States to repair victims of non-State actors, the victims of others. Was Uganda’s policy gratuitous? Or has public international law evolved beyond the economy of the Basic Principles and Guidelines? It is the purpose of the present text to answer these questions. The thesis is divided into three substantive chapters that are preceded by an Introduction and tied together by a brief Conclusion.

The Introduction articulates the hypothesis and highlights that if correct, i.e., if there exists a rule of public international law obliging States to repair victims not their own, there exist two candidates for the content of that rule. The candidates are explored in Chapters 1 and 2. Before turning to them, the Introduction demonstrates that avenues typically proposed today are insufficient juxtaposed with the aim of making reparations a reality for victims of non-State actors. It thereby underlines that the hypothesis is not just thought-provoking but also of immense practical value.

Chapter 1 first investigates the nature of the States’ obligation to protect economic, social and cultural rights, and concludes that the existing consensus as it is contained in the Basic Principles and Guidelines is that the obligation is a qualified obligation of result. It then examines the historical origins of the rule, demonstrates why it is inappropriate to apply it to the situation at hand and proposes that the obligation to protect be understood as an unqualified obligation of result instead, meaning that the State would find itself in a position of wrongfulness at the exact moment a non-State actor committed a violation. This would ipso facto create the State’s secondary obligation to repair. Lacking a conventional articulation to that effect, such a rule would have to exist in the sphere of customary international law.

Chapter 2 takes under the magnifying glass the International Covenant on Economic, Social and Cultural Rights and explores the potential of the obligation of progressive realisation, the prohibition against discrimination and studies the work of the Committee on Economic, Social and Cultural Rights, substantiating the argument that the obligation to repair could be understood as a primary obligation.

What we do not yet know at this point in the thesis is whether either proposition corresponds to the States’ understanding of the law. Chapter 3 therefore examines a dozen countries that have experienced a non-international armed conflict in their more or less recent past. It looks at their practice in regard to reparations, paying particular attention to whether States discriminate between victims of the State and those not of the State. As far as it can be discerned, it also analyses their understanding of public international law.

The Conclusion suggests an affirmation of the hypothesis.