■ Individual Recourse
Individuals do not have an “international legal personality” that is recognized under international law. Therefore, they can mainly exercise their rights before national courts, which will determine the appropriate sanctions and the reparation for the prejudice suffered.
At the international level, there are still relatively few international judicial remedies available to individual victims of serious violations of human rights and international humanitarian law (IHL).
The idea of compensation of victims for human rights violations or violations of (IHL is recent in international law and followed the development of international criminal law and tribunals. However, individuals can not directly trigger the competence of international criminal tribunals.
Nonetheless, there are several judicial and non-judicial bodies, at the international and regional levels, that offer mechanisms of individual complaint and potential remedies.
☞ Available individual Recourses in Case of Grave Breaches of IHL and Torture
•Victims of war crimes, crimes against humanity, and genocide may in principle bring cases before a national court of any State on the basis of universal jurisdiction, as established by the four 1949 Geneva Conventions and the 1984 Convention against Torture. However, some complaints have been unsuccessful as the State in question had not brought its legislation into conformity with this international obligation, or because the alleged perpetrator was not present on the territory of the State.
•Victims of events that took place in the former Yugoslavia or in Rwanda could not file complaints directly with the two ad hoc International Criminal Tribunals but could submit information to the prosecutor. They did not benefit from the status of “victim” before these Tribunals but only from that of “witness.”
•Victims may not directly seize the International Humanitarian Fact-Finding Commission, which is responsible for investigating alleged grave breaches and serious violations of IHL. They must address themselves to States Parties, which alone may request that the Commission initiate an inquiry.
•Victims of war crimes, crimes against humanity, and acts of genocide cannot directly refer a case to the International Criminal Court (ICC).
•However, victims, as well as witnesses and non-governmental organisations (NGOs), may transmit information to the prosecutor of the ICC, who, under certain conditions, has the power to launch an investigation on his own initiative. The prosecutor of the ICC may decide to initiate an investigation under the following conditions: the State on the territory of which the crime was committed or the state of the nationality of the alleged offender has ratified the Rome Statute, the acts that appear to be committed are not isolated actions but are part of crimes against humanity or war crimes, and the domestic courts are unwilling or unable to prosecute the crimes. The procedure provides victims and witnesses with special protection. Victims may be present during the trials. The ICC may decide to grant reparation to victims.
•At regional level, African and European courts of human rights, have individual complaint procedures ( infra ).
➔ ▸ Human rights ▸ International Humanitarian Fact-Finding Commission ▸ Torture ▸ Universal Jurisdiction; ▸ War crimes/Crimes against humanity
In terms of human rights protection, there are more opportunities for individuals to have recourse to an international or regional organ, whether judicial or not. Several such entities, usually treaty monitoring bodies (listed later), accept claims or petitions filed by individuals.
➔ Human rights ▸ International Criminal Court ▸ Reparation (Compensation)
I. INDIVIDUAL RECOURSE TO JUDICIAL BODIES
At the international level, there is no mechanism that can provide universal protection of human rights or punishment for violations of human rights or IHL. There is no international court that has a mandate to receive individual complaints of such type. The ICC may receive information from individuals regarding allegations of crimes of genocide, war crimes, and crimes against humanity. However, such complaints will not automatically trigger a prosecution on the part of the ICC, unless the prosecutor so decides and certain preconditions to the Court’s exercise of jurisdiction have been met (see box above).
At the regional level, the European Court of Human Rights (ECtHR) siting in Strasbourg, the African Court for Human and People’s Rights siting in Arusha, the ECOWAS Court of Justice siting in Abuja, and the East African Court of Justice also siting in Arusha can receive individual communications.
With regard to the ECtHR, since the European Convention’s Protocol 11 entered into force in November 1998, all 46 States Parties to the Convention must accept the Court’s competence to receive individual applications (art. 34 of European Convention).
This competence is optional before the African Court on Human and People’s Rights created in 1998 after the adoption by member States of the African Union of the Protocol to the African Charter on Human and People’s Rights. The Court can examine individual complaints (art. 5(3) of the Protocol) if the State against whom the complaint was filed has accepted the competence of the Court (art. 34(6) of the Protocol). The possibility to receive individual complaints is also included in optional art. 30(f) of the Statute of the African Court of Justice and Human Rights based in Arusha adopted in 2008. This Court will enter into force upon ratification from 15 States. It will then merge the African Court on Human and People’s Rights and the Court of Justice of the African Union. As of April 2023, the Court has not entered into force.
Since 2005, citizens of ECOWAS Member States can file complaints against human rights violations perpetrated by State agents before the regional Court of Justice. The Court, which sits in Abuja, Nigeria, rules according to the provisions of the African Charter on Human and People’s Rights. Its decisions are legally binding to the ECOWAS Member States. Contrary to most of the other judicial bodies, local remedies need not be exhausted before cases are brought to the ECOWAS Court of Justice. The Court has already made a number of rulings on human rights issues. In 2008, the Court took a historic decision concerning slavery. The State of Niger was condemned for having violated the human rights of one of its citizens. While the Court found that Niger was not itself responsible for the discrimination, the country was found in violation of its international obligation to protect one of its citizens from slavery under international and national law (Hadijatou Mani Koraou v. the Republic of Niger, 27 October 2008). As a direct consequence of this case law, a positive obligation of States was found in the context of the prevention of slavery, similar to the one previously recognized in the Siliadin Case (Siliadin v. France, ECHR, 26 July 2005) on the basis of article 4 of the European Convention on Human Rights.
II. INDIVIDUAL RECOURSE BEFORE NONJUDICIAL BODIES
The examination of individual communications by non-judicial bodies does not give rise to mandatory decisions or sanctions. Nonetheless, it highlights collective patterns of human rights violations and puts pressures on States.
This procedure is available on a mandatory basis under several conventions before the following bodies:
•African Commission on Human Rights (African Charter on Human and People’s Rights, art. 55. A communication shall be considered by the Commission if a simple majority of its members so decide); •Inter-American Commission on Human Rights (American Convention on Human Rights, art. 44). The Commission can decide to bring the case before the Inter-American Court of Human Rights if the State does not comply with the Commission’s recommendations.
•Human Rights Committee (Optional Protocol to the International Covenant on Civil and Political Rights, which entered into force in 1976, art. 1);
•Committee on Economic, Social, and Cultural Rights (Optional Protocol to the International Covenant on Economic, Social, and Cultural Rights, which entered into force in 2013, art. 2. Only 26 States have ratified this Protocol as of April 2023);
•Committee on the Elimination of All Forms of Discrimination against Women (Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, arts. 1, 2); •Committee on the Rights of Persons with Disabilities (Optional Protocol to the Convention on the Rights of Persons with Disabilities, art. 1); •African Committee of Experts on the Rights and Welfare of the Child (African Charter on the Rights and Welfare of the Child, art. 44).
This procedure is available on an optional basis before the following bodies (States have to make a declaration accepting the competence of the Committee):
•Committee against Torture (Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, art. 22);
•Committee on the Elimination of Racial Discrimination (Convention on the Elimination of All Forms of Racial Discrimination, art. 14);
•Committee on the Protection of the Rights of Migrant Workers (International Convention on the Protection of Rights of All Migrant Workers and Their Families, art. 77.);
•Committee on the Rights of the Child (Third Optional Protocol to the CRC, art. 5).
Moreover, in times of armed conflict, the ICRC is mandated by the 1949 Geneva Conventions to receive individual claims concerning humanitarian law violations. However, the ICRC is not a judicial body but acts as the guardian and promoter of IHL. As such, it will report cases of violations to relevant authorities to make sure they are informed of the given situation and can redress it. This is done on a confidential basis.
☞ In practice, the efficiency of the mechanisms that can receive communications from individuals remains limited because their competence to receive such complaints is often optional—dependent on States’ explicit consent—and the procedures are subject to multiple admissibility conditions. Furthermore, only rulings by judicial organs (the European, African and Inter-American Courts of Human Rights) are truly binding on the accused States.
- Individual Complaint procedure to the United Nation High Commissioner for Human rights. Established by Resolution 1503 of 27 May 1970, the individual communication procedure has served as a basis for the establishment of the new Complaint Procedure established pursuant to the creation of the United Nations Council for Human Rights in 2006 in replacement of the former United Nations Commission on Human Rights. This new procedure has a similar mandate to the previous one, which is to address communications that reveal consistent patterns of gross violations of all human rights and fundamental freedoms.
Communications under this procedure may be submitted by individuals or groups at the following email address: email@example.com or to any country or regional office of the United Nations High Commissioner for Human Rights. ➔ United Nations High Commissioner for Human Rights (UNHCHR)/Human Rights Council
Other types of remedies exist and can be triggered by States or NGOs. They are presented in the following entries. ➔ Human rights ▸ War crimes/Crimes against humanity ▸ Torture ▸ Universal Jurisdiction
III. PREVENTIVE MECHANISMS
In international law, there are several mechanisms preventing torture, according to which independent national or international organs may visit detention centres. These organs may be informed about individual cases. Such organs include the European Committee Against Torture, which has jurisdiction over all Council of Europe Member States, and the UN Sub-committee on Prevention of Torture, which has jurisdiction over States Parties to the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment of 18 December 2002. This Optional Protocol entered into force in June 2006 and binds 92 States as of April 2023. According to the Protocol, States Parties undertake the obligation to set up, designate, or maintain at the domestic level one or several visiting bodies for the prevention of torture and other cruel, inhuman, or degrading treatment or punishment.
In situations of armed conflict, the International Committee of the Red Cross (ICRC) is the only institution that has a right to visit any detention facility linked with the conflict. Individual cases may be referred to the ICRC so it can report them to the authority exercising effective control on the situation.
Mechanisms of remedies also exist within the United Nations system. The Special Procedures mechanism, put in place by the United Nations High Commissioner for Human Rights and assumed by the Human Rights Council, includes the possibility to examine individual communications under the Complaint Procedure. The Human Rights Council Advisory Committee has appointed a Working Group on Communications, with a mandate to examine the communications and to bring to the attention of the Council consistent patterns of gross and reliably attested violations of human rights and fundamental freedoms.
➔ African Courts and Commission on Human Rights ▸ Committee against Torture ▸ Committee on the Elimination of Racial Discrimination ▸ Committee on the Rights of the Child ▸ European Committee for the Prevention of Torture ▸ European Court of Human Rights ▸ Human rights ▸ Human Rights Committee ▸ Ill treatment ▸ Inter-American Court and Commission on Human Rights ▸ International Criminal Court ▸ International Criminal Tribunals ▸ International Humanitarian Fact-Finding Commission ▸ International Humanitarian Law ▸ Migrant-Migration ▸ Penal sanctions in humanitarian law ▸ Rape ▸ Red Cross and the Red Crescent ▸ Reparation (Compensation) ▸ Responsibility ▸ Torture ▸ United Nations High Commissioner for Human Rights/ Human Rights Council ▸ Universal jurisdiction ▸ War crimes/Crimes against humanity
For Additional Information:
International Commission of Jurists, The Right to a Remedy and Reparation for Gross Human Rights Violations: A Practitioners’ Guide , Revised Edition, 2018. Available at https://www.icj.org/wp-content/uploads/2018/11/Universal-Right-to-a-Remedy-Publications-Reports-Practitioners-Guides-2018-ENG.pdf
Rodley, Nigel, and David Weissbrodt. “United Nations Non-Treaty Procedure for Dealing with Human Rights Violations.” In Guide to International Human Rights Practice , edited by Hurst Hannum, 65–88. Ardsley, NY: Transnational, 2004.
Shelton, Dinah. Remedies in International Human Rights Law. Oxford: Oxford University Press, 3rd edition, 2015.
Stubbins Bates Elizabeth et al., Chapter 5, “Victims’ Rights to a Remedy and Reparation” in Terrorism and International Law: Accountability, Remedies, and Reform: A Report of the IBA Task Force on Terrorism , Oxford University Press (2011).
United Nations Office of the High Commissioner for Human Rights. Complaint Mechanism of the Special Procedures . Available at http://www.ohchr.org/EN/HRBodies/SP/Pages/Communications.aspx.
Zegveld, L. “Remedies for Victims of Violations of International Humanitarian Law.” International Review of the Red Cross 851 (September 2003): 497–526.