THE 1985 UN VICTIMS’
DECLARATION (the short
name!)
ASSOCIATE PROFESSOR SAM
GARKAWE
LECTURE FOR 11
THASIAN
WHAT IS THE UN VICTIMS’
DECLARATION?
•
AN ASPIRATIONAL DOCUMENT THAT
HOPEFULLY ALL STATES WILL FOLLOW
•
‘SOFT LAW’ ONLY IN INTERNATIONAL LAW
TERMS – HAS NO ENFORCEABLE STATUS
•
WENT THROUGH THE UN GENERAL
ASSEMBLY IN 1985; NO VOTES AGAINST;
128 VOTES FOR
•
CONSIDERED VICTIM MOVEMENT’S
HISTORY OF THE
DECLARATION I
• DISCUSSED AND DEBATED DURING THE 1985
UN CRIME CONGRESS HELD IN ZAGREB, CROATIA (then the former Yugoslavia)
• THE WSV HAD A PROMINENT ROLE IN ITS
DRAFTING AND ITS CONTENT, BUT ULTIMATELY STATES HAD TO COME TO AN AGREEMENT
• NEGOTIATIONS ON ITS TERMS TOOK PLACE
BETWEEN DEVELOPED AND DEVELOPING NATIONS
• AFTER AGREEMENT AT CRIME CONGRESS IT
HISTORY OF THE
DECLARATION II
•
MAIN STICKING POINT WAS WHAT
VICTIMS SHOULD BE INCLUDED
•
ALL AGREED THAT VICTIMS OF CRIME
SHOULD BE INCLUDED
•
KEY POINT OF DIFFERENCE CONCERNED
VICTIMS OF ABUSE OF POWER
•
DEVELOPED NATIONS WANTED NO
MENTION OF THESE VICTIMS – WHY?
•
DEVELOPING NATIONS WANTED THESE
HISTORY OF THE
DECLARATION III
• COMPROMISE ADOPTED WAS THAT VICTIMS
OF ABUSE OF POWER WOULD BE INCLUDED, BUT WOULD HAVE FAR LESS RIGHTS
• SEE THE TERMS OF THE DECLARATION –
VICTIMS OF CRIME COVERED IN ARTICLES 1-17; VICTIMS OF ABUSE OF POWER COVERED IN ARTICLES 18-21
• THE ARTICLES ON VICTIMS OF ABUSE OF
WHAT DOES DECLARATION
DO?
•
IT DEFINES TWO CATEGORIES OF
VICTIMS THAT ARE MENTIONED IN THE
FULL TITLE
•
IT THEN SETS OUT THE OBLIGATIONS
OF STATES TOWARDS THESE TYPES OF
VICTIMS
•
ARE THESE LEGAL OBLIGATIONS?
VICTIMS OF CRIME I –
DEFINITION I
•
DEFINED IN ARTICLE ONE AS
PERSON(S) WHO HAVE SUFFERED
HARM
(VERY BROADLY DEFINED)
THROUGH ACTS OR OMISSIONS THAT
ARE IN VIOLATION OF CRIMINAL LAWS
AS DEFINED BY NATIONAL LAWS
VICTIMS OF CRIME I –
DEFINITION II
• ARTICLE TWO MAKES IT CLEAR THAT ONE IS
A VICTIM ‘REGARDLESS OF WHETHER THE PERPETRATOR IS IDENTIFIED,
APPREHENDED, PROSECUTED OR CONVICTED ..’
• ALSO REGARDLESS OF THE RELATIONSHIP
BETWEEN THE VICTIM AND THE
PERPETRATOR – WHAT IS THIS AIMED AT?
• VICTIMS ALSO INCLUDE IMMEDIATE FAMILY &
VICTIMS OF CRIME II
KEY OBLIGATIONS ON STATES
•
ACCESS TO JUSTICE AND FAIR
TREATMENT (ARTICLES 4-7) – 4 & 6 (b)
•
RESTITUTION [FROM OFFENDER]
(ARTICLES 8-11) – 10 & 11
•
COMPENSATION [FROM THE STATE]
(ARTICLES 12-13)
VICTIMS OF ABUSE OF
POWER I
•
DEFINED IN ARTICLE 18 – THOSE WHO
SUFFER HARM (again broadly defined)
THROUGH ACTS OR OMISSIONS THAT
DO NOT YET CONSTITUTE VIOLATIONS
OF NATIONAL CRIMINAL LAWS BUT OF
INTERNATIONALLY RECOGNIZED
HUMAN RIGHTS NORMS
VICTIMS OF ABUSE OF
POWER II
• HOW IS THE DEFINITION TO BE UNDERSTOOD?
THERE IS MUCH CONFUSION AND MISUNDERSTANDING
• THERE MIGHT BE TWO TYPES OF ABUSE OF
POWER VICTIMS – 1) VICTIMS OF CRIMES BY
STATE OFFICIALS AND OTHERS THAT HAVE NOT BEEN INVESTIGATED OR PROSECUTED (called NON-PROSECUTORIAL VICTIMS) – THE COMMON (MIS)UNDERSTANDING OF THE TERM. THIS IS
CLEARLY INCORRECT LEGALLY UNDER THE
DECLARATION AS THESE PEOPLE ARE IN FACT
VICTIMS OF ABUSE OF
POWER II
• THE CORRECT UNDERSTANDING OF ABUSE
OF POWER VICTIMS ARE WHERE
GOVERNMENTS DELIBERATELY DO NOT
CRIMINALISE OR LEGALISE ACTIONS THAT
SHOULD
BE CRIMINAL OFFENCES, BUT DUETO THE IMMORAL NATURE OF THE
GOVERNMENT, THEY ARE NOT. TERMED
IMMORAL
ABUSE OF POWER VICTIMS(LEROY LAMBORN). The best examples are 1) blacks who suffered discrimination,
VICTIMS OF ABUSE OF
POWER III
OBLIGATIONS OF GOVERNMENTS
•
VERY WEAK – READ ARTICLES 19-21
•
WHAT DO YOU THINK ARTICLE 20 IS
AIMED AT? WHAT ABOUT ARTICLE 21?
•
MUCH BETTER TO BE A VICTIM OF
IMPORTANCE OF THE
DECLARATION I
SYMBOLICALLY
•
UNIVERSAL PRINCIPLES ON HOW
VICTIMS SHOULD BE TREATED
•
SHOWS VICTIMS ARE DESERVING ON
INTERNATIONAL ATTENTION AND
CONSIDERATION; VICTIMS ARE NOT JUST
A NATIONAL ISSUE
•
ROLE OF VICTIMOLOGISTS, SUCH AS
THE WSV
•
IMPORTANCE OF THE WSV BEING
IMPORTANCE OF THE
DECLARATION II
PRACTICALLY
• INTERNATIONALLY – HAS LED TO SOME OF ITS
PRINCIPLES BEING INCORPORATED INTO IMPORTANT TREATIES, SUCH AS:
* ARTS. 24/25 CON. Against TRANSITIONAL CRIME
* ARTS. 6-8 OF HUMAN TRAFFICKING PROTOCOL TO ABOVE TREATY
* ART 68 (3) OF ICC STATUTE – EXACT LANGUAGE OF ARTICLE 6 (b) USED
IMPORTANCE OF THE
DECLARATION II
PRACTICALLY (CONT..)
• MANY DOMESTIC CRIMINAL JUSTICE
SYSTEMS HAVE ADOPTED IN SOME WAYS THE PRINCIPLES BEHIND THE DECLARATION
• SOME LEGISLATION HAS EXPRESSLY SAID
THE DECLARATION GUIDES THEM eg.
