the 1985 un victims declaration sam garkawe

THE 1985 UN VICTIMS’
DECLARATION (the short
name!)
ASSOCIATE PROFESSOR SAM
GARKAWE
LECTURE FOR 11TH ASIAN POSTGRADUATE COURSE ON VICTIMS

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
‘MAGNA CARTA’ – LIKE THE UDHR IS TO
HUMAN RIGHTS ADVOCATES

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
MADE ITS WAY TO THE UN GENERAL
ASSEMBLY

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
VICTIMS TO BE INCLUDED AND HAVE
SAME RIGHTS AS VICTIMS OF CRIME

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 117; VICTIMS OF ABUSE OF POWER COVERED
IN ARTICLES 18-21
• THE ARTICLES ON VICTIMS OF ABUSE OF
POWER ARE VERY GENERAL, NOT NEARLY AS
SPECIFIC

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?
MORAL OBLIGATIONS? A COMBINATION
OF BOTH?

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

• CAN BE INDIVIDUAL OR COLLECTIVE
• DEFINITION TIED TO 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 &
DEPENDANTS, AND THOSE WHO INTERVENE
TO ASSIST OR PREVENT VICTIMISATION

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)
ASSISTANCE (ARTICLES 14-17)

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
• DEFINITION TIED TO HUMAN RIGHTS
NORMS – MUCH MORE UNCERTAIN AS
TO WHAT THESE ARE EXACTLY

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 CRIME (SEE DEFINITION AND ARTICLE
TWO)

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 DUE
TO 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,
forced removal etc. under apartheid laws
AND 2) Nazi laws that allowed minorities to
be victimised ‘legally’

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
CRIME THAN A VICTIM OF ABUSE OF
POWER UNDER THE DECLARATION –
YOU WILL HAVE FAR MORE POTENTIAL
RIGHTS

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
RECOGNISED BY THE UN SYSTEM

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
* 2005 RIGHT TO A REMEDY AND REPARATION

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.
VICTIMS’ CHARTER ACT (Victoria, Australia)
2006 says in s4 (2) ‘the objects [of the
legislation] are based upon the UN
Declaration’