A/HRC/30/42
genocide. The Special Rapporteur urges all States to ratify the Convention on
the Non-Applicability of Statutory Limitations to War Crimes and Crimes
against Humanity.
106. States should promote reforms to ensure full compliance of emergency,
security or anti-terrorism legislation with international human rights standards.
Reforms should include explicit reference to non-derogable rights and enshrine
elements for suitability, necessity and proportionality tests. Legislation must be
in conformity with international standards, in particular the principle of
legality, due process and fair trial. Furthermore, the criminalization of terrorist
activity must be formulated in explicit and precise terms that enable individuals
to regulate their behaviour, and the definitions of terrorist crimes should be
confined exclusively to activities that entail or are directly related to the use of
deadly or serious violence against civilians.
107. States should also consider methods of vetting judicial personnel that are
compatible with the separation of powers, the independence of the judiciary and
due-process guarantees. A judiciary that is not trusted by citizens either for
reasons of complicity or ineffectiveness will find it impossible to fulfil its
corrective and preventive roles. Since self-reflection about the judiciary’s own
role in violations is both trust-inducing and potentially preventive, the training
of judicial personnel, and judicial reform in itself, should address the
judiciary’s role in past violations.
108. The Special Rapporteur calls upon States to include in their policies
initiatives geared towards strengthening internal (individual) and external
(institutional) judicial independence. He urges them to ensure that their judicial
systems comply with relevant standards, including the Basic Principles on the
Independence of the Judiciary. Judiciaries can crucially help to prevent
violations by checking executive powers and by adjudicating conflicts
impartially and independently.
109. He also calls upon States to endow their judiciaries with specialized
competencies required to address mass atrocities strategically to dismantle
networks of criminality. Implementing such strategies is one of the most
significant contributions judiciaries can make to the prevention of violations.
Similarly, he urges them to acquire competencies in the detection and
prevention of other gross violations, which are routine in many places, including
torture. While specialized judicial capacities are sometimes best expressed
through the creation of specialized entities, no special jurisdiction — military or
not — should weaken the power to guarantee and enforce basic rights.
110. States should consider, in transitional contexts, constitutional
amendments or reforms to lay down a catalogue of rights and structures of
governance as the foundation of the “new” State. This is possible through an
incremental, interim or fully fledged constitutional drafting process. Enshrining
the principles of the separation of powers, the independence of the judiciary, the
non-partisan role of the security forces and a bill of rights is indicative of a new
beginning. Special attention should be paid to providing for oversight,
accountability and strong human rights protection mechanisms, including
through the establishment of a constitutional court or chamber with an
individual complaints procedure.
111. The jurisdiction of military tribunals should be limited solely to military
personnel charged exclusively with military offences, to the exclusion of human
rights violations and serious violations of international humanitarian law.
24
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents