A/HRC/30/42
16.
In 2004, the Human Rights Committee held that the purposes of the
International Covenant on Civil and Political Rights “would be defeated without an
obligation integral to article 2 to take measures to prevent a recurrence of a violation
of the Covenant. Accordingly, it has been a frequent practice of the Committee … to
include … the need for measures, beyond a victim-specific remedy, to be taken to
avoid recurrence of the type of violation in question”. 5
17.
The first jurisprudence by the Committee regarding right-to-life cases
requiring States to “take steps to ensure that similar violations did not occur in the
future” dates back to the 1980s. 6 The former Special Rapporteur, Theo van Boven,
argued on that basis that “there exists a definite link between effective remedies to
which the victim(s) is (are) entitled, remedies aimed at the prevention of the
recurrence of similar violations and the issue of the follow -up given by the State
party”. 7
18.
The general commitment to adhere to a right involves making efforts to ensure
that its violation ceases and is not repeated. The duty to prevent recurrence is hence
closely linked to the obligation of cessation of an ongoing violation. On this basis,
“guarantees serve a preventive function and may be described as a positive
reinforcement of future performance”. 8
19.
Regional human rights courts and human rights treaty bodies have, with
increasing frequency, issued orders related to guaranteeing non -recurrence. For
example, the Inter-American Court of Human Rights has interpreted its remedial
powers broadly and ordered remedies directed not only at victims, but also at
communities and towards society at large. Significant progress by the Court includes
a practice of requiring States to take measures to preserve the victim’s memory or
making relevant parts of its ruling public for educational purposes. 9 On legislative
reform, the Court held that laws that place civilians under military court jurisdiction
are a violation of the American Convention on Human Rights; consequently, it
ordered the State to change the legislation. 10 Such orders are not uncommon in Court
decisions. As the Court argued in its landmark Velásquez Rodríguez decision, States
are obliged “to organize the governmental apparatus and, in general, all the
structures through which public power is exercised, so that they are capable of
juridically ensuring the free and full enjoyment of human rights” . 11
B.
Conceptual issues
20.
Despite the significant growth of the relevant international standards, the term
“guarantees of non-recurrence” requires elaboration regarding the following
conceptual questions:
5
6
7
8
9
10
11
6
See CCPR/C/21/Rev.1/Add.13, para. 17.
See communications No. 88/1981, Larrosa v. Uruguay, Views adopted on 29 March 1983, para. 13;
No. 124/1982, Muteba v. Zaire, decision on admissibility dated 25 March 1983, para. 13; and No.
176/1984, Peñarrieta et al. v. Bolivia, Views adopted on 2 November 1987, para. 18.
E/CN.4/Sub.2/1993/8, para. 55.
See Draft Articles on State Responsibility, article 30.
See Arturo J. Carrillo, Justice in Context: The Relevance of Inter-American Human Rights Law and
Practice to Repairing the Past (Oxford University Press, 2008).
Ibid. See also Castillo Petruzzi et al. v. Peru, Judgement of 30 May 1999, Inter-American Court of
Human Rights, Ser. C, No. 52. para. 222.
See Velásquez Rodríguez v. Honduras, Judgement of 29 July 1988, Inter-American Court of Human
Rights, Ser. C, No. 4, para. 166.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents