This post is a summary of the report published in 2012 at https://crcvc.ca/wp-content/uploads/2021/09/Wemmers__Victims-rights-are-human-rights2012.pdf. The second summary is the chapter 15 with the title above, of the book "Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers," published at https://www.un.org/ruleoflaw/files/training9chapter15en.pdf
In this paper the author argues that victims' rights are human rights. Criminal law typically views victims as witnesses to a crime and only allowing them in when they are needed to testify. This is a major source of dissatisfaction for victims who seek validation in the criminal justice system. As individuals with dignity, victims have the right to recognition as persons before the law. However, such rights are only meaningful if they can be enforced. The last fifty years have witnessed the birth of victimology and the victims' movement. Crime constitutes a violation of victims' rights and they require recognition as persons before the law. The word "right" has several different meanings. It has a moral and a political meaning: rectitude and entitlement. Human rights are basic rights, which it is generally considered all people should have and without which we would be unable to live as humans and develop to our full potential. Human rights have four major characteristics: universal, inherent, indivisible and inalienable. Past abuses of power have led to the development of human rights instruments in order to protect the rights of individuals and groups. Following the horrors of the Nazi Regime, the international community pulled together to create the United Nations. As one of its first tasks, the U.N. created the Commission on Human Rights, which wrote the UDHR. The core of the declaration is moral individualism and respect for human dignity. It attempts to protect individual agency against the totalitarian state. Rights empower the powerless. In order to improve the plight of victims of crime, in 1985, the U.N. General Assembly adopted the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. According to the declaration, its aim 'to assist governments and the international community in their efforts to secure justice and assistance for victims of crime and victims of abuse of power.' It recognize that victims sometimes need support in order to deal with the impact of crime and it gives them the right to be referred to adequate support services. The declaration recognizes victims' right to receive notification about the progress of the case. Also recognizes victims' right to protection of their physical safety and their privacy. Finally, the declaration acknowledges victims right to reparation from the offender as well as compensation from the state. The notion of looking at victims through the lens of human rights is not entirely new. As early as 1985, Robert Elias argued for a "victimology of human rights." Elias warned that victimologists should study all man-made victimizations, which includes crime as well as gross violations of human rights such as genocide, torture and slavery. Previous work linking victims' rights to human rights can be found in the work of legal scholars such as Sam Garkawe and Jonathan Doak. Sam argued that the poor treatment of victims should be viewed as a matter of human rights protection. To this end, he proposes the creation of a U.N. Convention on Victims' Rights. Following the structure of international lawmaking, a Convention would include some kind of monitoring mechanism. The idea of developing a Convention was supported by the World Society of Victimology. Victims' rights, like human rights, are only meaningful if they confer entitlements as well as obligations on people. Otherwise, they are not rights and they will ultimately fail to empower victims. Legal protection of rights is necessary in order to defend victims' rights. It is the ability to exercise our rights, using our free will and rational choice, which gives meaning to the notion of 'human dignity.' A particularly serious aspect of abuses of power such as human rights violations is that they are committed by, or at least, with the knowledge of authorities that are expected to protect the individual and his or her rights instead of violating them. In other words, the sense of trust that should have existed has been seriously betrayed. The duty to investigate, prosecute and punish human rights violations is inherent in States' responsibility to ensure effective human rights protection and it is a duty that has been consistently emphasized by the international monitoring bodies. In certain circumstances, it may be difficult to investigate acts that violate an individual's rights. They duty to investigate, like the duty to prevention, is not breached merely because the investigation does not produce a satisfactory result. Nevertheless, it must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the state as its own legal duty, not as a step taken by private interest that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government. This is true regardless of what agent is eventually found responsible for the violation. Where the acts of private parties that violate the Convention are not seriously investigated, those parties are aided in a sense by the government, thereby making the state responsible on the international plane. The State have a duty to ensure that victims of violations obtain redress and that they have "an enforceable right to fair and adequate compensation, including the means for a full rehabilitation as possible." State shall take all appropriate measures to promote physical and psychological recovery and social integration of a victim. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity. Impunity for human rights violations is one of the most serious threats to the full enjoyment of the rights and freedoms of the individual. A culture of impunity widens a gap between those close to the power structures and others, who are vulnerable to abuses. Victims of human rights violations yearn for recognition of their hardship and for ultimate justice for the wrongs committed. On the other hand, perpetrators of human rights violations insist on obtaining pardon for the acts committed. But in the midst of these apparent tensions, society needs to find a modus vivendi in order to move forward for the good of all. This is not the place to seek to resolve complex issues of guilt, admission of guilt, reparation, rehabilitation and reconciliation that arise in such situations. It may, however, be said in the light of this chapter that, pardons can not in any circumstances be granted for violations. Some rights can not be derogated from and any circumstances, not even in times of public emergency. The principle of justice for everyone demands that victims' rights and sufferings be recognized and remedied, that the perpetrators be punished and the State involved act efectively to prevent similar acts from occurring in the future. A society is unlike to be able to heal unless these requirements are effectively met.
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