INTRODUCTION

International law is increasingly recognising the rights of victims of gross violations of international human rights law (IHRL) and serious violations of international humanitarian law (IHL). It is first and foremost incumbent upon states, as duty bearers within the human rights framework, to ensure that these rights are respected. A growing number of states are fulfilling, or at least trying to fulfil their responsibility in this regard. In certain contexts, when states are unwilling or unable to render justice to the victims of these violations, international criminal jurisdictions, in particular the International Criminal Court can step in and help contribute to filling the impunity gap. However, their ability to do so is often limited.

This short paper examines the emergence and consolidation of the rights of victims of gross violations of IHRL and serious violations of IHL under international law and the role of national and international courts in realising them.1 First, it sets out the definition and sources of these rights. It then briefly surveys the obligations incumbent on states to uphold them, before exploring how the ICC also constitutes an avenue, albeit a limited one, through which the rights of victims of such violations can be given effect. It emphasises that states have the primary obligation to investigate and prosecute those responsible for international crimes, and that failure to do so does not relieve them of responsibility under international human rights law, even when other courts, such as the ICC, do step in and exercise their jurisdiction. It also argues that, due to its limited jurisdiction and resources, the ICC can fill the impunity gap left by states with regards to only a small number of cases. Therefore, many victims are left without a forum where they can seek and be granted a remedy.

DEFINITION OF VICTIMS OF GROSS VIOLATIONS OF IHRL AND SERIOUS VIOLATIONS OF IHL

The UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (the ‘Basic Principles and Guidelines’), adopted by the UN General Assembly in 2005,2 set out a general definition of victims of gross violations of IHRL and serious violations of IHL.