THE 1985 UN VICTIMS

1
THE 1985 UN VICTIMS DECLARATION (the short
name!)

• ASSOCIATE PROFESSOR SAM GARKAWE
• LECTURE FOR 11TH ASIAN POST-GRADUATE COURSE ON
  VICTIMS

2
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 MOVEMENTS MAGNA CARTA LIKE
  THE UDHR IS TO HUMAN RIGHTS ADVOCATES

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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

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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

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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 POWER ARE
  VERY GENERAL, NOT NEARLY AS SPECIFIC

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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?

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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

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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

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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)

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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

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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)

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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

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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

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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

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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

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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