OSCE, Alm.del - 2022-23 (2. samling) - Bilag 26: Offer from UNOCT on technical support for Model Legislative Provisions on Victims of Terrorism

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Model Legislative

Provisions

TO SUPPORT THE NEEDS AND PROTECT

THE RIGHTS OF VICTIMS OF TERRORISM

OSCE, Alm.del - 2022-23 (2. samling) - Bilag 26: Offer from UNOCT on technical support for Model Legislative Provisions on Victims of Terrorism OSCE, Alm.del - 2022-23 (2. samling) - Bilag 26: Offer from UNOCT on technical support for Model Legislative Provisions on Victims of Terrorism

Acknowledgments

The United Nations Office of Counter Terrorism (UNOCT), the Inter-Parliamentary Union (IPU), and the

United Nations Office on Drugs and Crime (UNODC) wish to extend their gratitude to Member States,

Members of Parliament, international and regional organizations, non-governmental and civil society

organizations, victims’ associations and victims who contributed through an open and inclusive

consultative process to the drafting of the Model Legislative Provisions.

Professor Ben Saul and Professor Jeanne Sulzer, supported by Elise Lauriot Prevost, and Jürgen

Schurr, assisted UNOCT, IPU and UNODC in the drafting of the Model Legislative Provisions, using as

a basis, the contributions of virtual expert consultations that took place between July 2020 and June

2021 and utilised extensive desk research on the rights and needs of victims of terrorism, including by

looking at existing good practices around the world.

UNOCT, IPU and UNODC are grateful to the members of the Expert Group for their comments and

their contributions to the drafting of the Model Legislative Provisions: Fatima Ali Haider, Levent Altan,

Khady Ba Faye, Odette Chesnot, Laura Dolci, Edward Flynn, James Freda, Samar Khamis, Seh Lih Long,

Megan Manion, Fionnuala Ní Aoláin, Michael O’Donnell, Iman Sayed Taha.

UNOCT, IPU and UNODC are grateful to the participants of the expert group consultations who have

provided valuable input and contributions for this work. These consultations had the participation

of more than 220 expert panellists and other participants, including victims of terrorism, victims’

rights advocates, judges, prosecutors, defence attorneys, law enforcement officials, women’s rights

advocates, Members of Parliaments, psychologists, witness protection experts, human rights experts,

academic researchers, Member States, representatives of international organizations and regional

parliamentary organizations.

The following staff members of the UN and IPU contributed to the development of the Model Legislative

Provisions: Jee Aei Lee, Jo Dover, Anna Giudice, Martin Hemmi, Anika Holterhof, Samantha Irikidzai

Munodawafa, Arianna Lepore, Tina Mykkanen, Roshni Peshavaria, Sven Pfeiffer, Alexandra Souza

Martins, Hannah Tiefengraber.

The production of the Model Legislative Provisions was guided by Ambassador Mokhtar Omar, Senior

Advisor of the IPU Secretary General, Mr. Masood Karimipour, Chief, Terrorism Prevention Branch

UNODC, Mr. Mauro Miedico, Deputy Director and Chief of Special Projects and Innovation Branch

(SPIB) UNOCT and UNOCT Parliamentary Hub.

The following personnel of the UN and IPU coordinated the production and drafting of the Model

Legislative Provisions: David Alamos Martinez, Nicole Anderson, Cristina Barbaglia, Bouchra

Bouchkouj, Carmen Elena Castillo, Roberta Di Pofi, Ulrich Garms, Olga Lanchenko, Arturo Laurent

Gonzalez, Denise Lifton, Antonio Giovanni Luzzi, Louise Tripon, Erik van der Veen, Nikolaj West.

UNOCT, IPU and UNODC are most grateful to the following donors: Denmark, Kingdom of Saudi Arabia,

National People’s Congress of the People’s Republic of China, State of Qatar and Sweden for providing

the funding to enable the development of this publication.

OSCE, Alm.del - 2022-23 (2. samling) - Bilag 26: Offer from UNOCT on technical support for Model Legislative Provisions on Victims of Terrorism

Abbreviations and Acronyms

CEDAW

CESR

CETS

CRPD

CSO

GCTF

ICC

ICCPR

ICERD

ICESCR

ILC

IPU

OHCHR

UDHR

UNCAT

UNCCT

UNOCT

UNODC

UNTOC

Convention on the Elimination of All Forms of Discrimination against Women

Committee on Economic, Social and Cultural Rights

Council of Europe Treaty Series

Convention on the Rights of Persons with Disabilities

Civil society organization

Global Counterterrorism Forum

International Criminal Court

International Covenant on Civil and Political Rights

International Convention on the Elimination of Racial Discrimination

International Covenant on Economic, Social and Cultural Rights

International Law Commission

Inter-Parliamentary Union

Office of the United Nations High Commissioner for Human Rights

Universal Declaration of Human Rights

United Nations Committee against Torture

United Nations Counter-Terrorism Centre of UNOCT

United Nations Office of Counter-Terrorism

United Nations Office on Drugs and Crime

United Nations Convention on Transnational Organized Crime

OSCE, Alm.del - 2022-23 (2. samling) - Bilag 26: Offer from UNOCT on technical support for Model Legislative Provisions on Victims of Terrorism

Table of Contents

Acknowledgments

Abbreviations and acronyms

Introduction

Preamble

Chapter I. General provisions

Article 1: [Title]

Article 2: Commencement

Article

General principles

Article

Scope of application

Chapter II. Jurisdictional application

Article

Jurisdictional application

Chapter III. Definitions

Chapter IV. Coordination, cooperation and oversight

Article

Establishment of a coordination body for victims of terrorism

Article 7: Registry of victims

Chapter V. The right to assistance

Article

Right to assistance

Article 9: Availability, accessibility, assessment and accountability

Chapter VI. Right to reparation

Article 10: General provisions

Article 11: Right to rehabilitation

Article 12: Reparation procedures

Article 13: Right to restitution

Article 14: Right to compensation

Article 15: [Creation of a] State compensation fund for victims of terrorism

Article 16: Right to satisfaction

Article 17: Mutual legal assistance

Chapter VII. Measures to protect the physical and psychological integrity and privacy

of victims of terrorism

Article 18: Protective measures

Article 19: Protective measures in relation to legal proceedings

Article 20: Protective measures outside of legal proceedings

Article 21: Protection of privacy

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Article 22: Relationship between victims and the media

Chapter VIII. Right to information

Article 23: Right to information

Chapter IX. Access to justice

Article 24: Access to justice

Article 25: Participation of victims in criminal proceedings

Article 26: Restorative justice

106

111

Chapter X. Consular assistance and protection

Article 27: Consular assistance and protection

117

Chapter XI. Child victims

Article 28: Child victims

120

Chapter XII. Victims of sexual and gender-based violence by terrorist groups

Article 29: Victims of sexual and gender-based violence by terrorist groups

Article 30: Specific assistance needs

Article 31: Specific evidentiary standards and procedures

127

129

131

Chapter XIII. Victims of trafficking by terrorist groups

Article 32: Victims of trafficking by terrorist groups

134

Chapter XIV. Armed conflict, displacement and migration

Article

33:

Armed conflict

Article

34:

Internal displacement and international migration

137

140

Chapter XV. Training

Article

35:

Victim-sensitive training

Article

36:

Specialized training

142

144

Chapter XVI. Organizations representing the interests of victims of terrorism and other

civil society organizations

Article 37: Organizations representing the interests of victims of terrorism

Article

38:

Support for and engagement with victims organizations and other civil society

organizations

Article 39: Participation of victims organizations and other civil society organizations in

judicial proceedings

148

150

152

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Introduction

The Model Legislative Provisions presented in this document are intended to assist Member States

in protecting the rights and supporting the needs of victims of terrorism in their national laws. Their

purpose is twofold:

■

First, to serve as a model for the review and modernization of existing laws and procedures related

to victims of terrorism and the drafting of legislation where no legislation exists; and

■

Secondly, to systematize existing good practices and promote the harmonization of legislation to

support and protect victims of terrorism internationally, in line with recent advances on this topic.

The Model Legislative Provisions are based on the existing international normative frameworks

pertaining to victims of crimes, gross human rights violations and serious violations of international

humanitarian law. They aim at ensuring equal treatment between all victims and are geared towards

addressing their needs as a result of the harm suffered, without distinction as to the root causes of

their harm.

The Model Legislative Provisions are not intended to substitute for the national legislative drafting

process or be incorporated directly into national legislation. Instead, they can serve as a guide and

provide a basis for developing national provisions in line with the constitutional and legal frameworks

of each State. The Provisions are accompanied by a Commentary which indicates legal sources and

provides guidance on enactment, implementation and interpretation. When necessary, options for

the formulation and phrasing of the provisions are suggested for different legal systems. The use

of the term “model legislative provisions” is intended to indicate that provisions regarding victims

of terrorism are not necessarily to be contained in a single statute (as the term “model law” could

suggest), and do not necessarily have to be at the level of legislation. For some issues, regulation at a

level below legislation may be sufficient or even more adequate.

OSCE, Alm.del - 2022-23 (2. samling) - Bilag 26: Offer from UNOCT on technical support for Model Legislative Provisions on Victims of Terrorism

Model Legislative Provisions

TO SUPPORT THE NEEDS AND PROTECT THE RIGHTS OF VICTIMS OF TERRORISM

Background

The United Nations General Assembly has adopted a number of important resolutions which

acknowledge the rights of, and the need to provide remedies for, victims and survivors of terrorism,

and which recognize the dehumanization of victims of terrorism as one of the conditions conducive

to terrorism.

In Pillar I of the Plan of Action adopted in the United Nations Global Counter-Terrorism Strategy,

Member States commit to “consider putting in place, on a voluntary basis, national systems of

assistance that would promote the needs of victims of terrorism and their families and facilitate the

normalization of their lives. In this regard, we encourage States to request the relevant United Nations

entities to help them to develop such national systems”.

In reviewing the Global Counter-Terrorism

Strategy in 2018, the General Assembly urged the United Nations and other international and regional

organizations “to step up their efforts to provide, upon request, technical assistance for building the

capacity of Member States in the development and implementation of programmes of assistance

and support for victims of terrorism”.

General Assembly resolution 73/305 of 28 June 2019 further

emphasized Member States’ commitment to victims, particularly by calling for the development of

comprehensive assistance plans for victims of terrorism, to address their immediate, short-term and

long-term relief and rehabilitation needs.

The resolution also calls upon the United Nations Office of

Counter-Terrorism (UNOCT) and the United Nations Office on Drugs and Crime (UNODC) to build the

capacity of Member States to assist victims, including by providing technical assistance.

In his report on progress made towards supporting victims of terrorism in the UN system (A/74/790),

the United Nations Secretary-General suggests that “Member States may also wish to consider

developing national legislation that specifically addresses the rights, interests and needs of victims of

terrorism” such as in the form of model legislation, good practices and lessons learned. It adds that the

“United Nations continues to stand ready to support Member States in this regard, including through

the development of model legislation”.

The report also emphasizes the importance of developing

national assistance plans,

stresses the complementary nature of national legislation and establishing

comprehensive national assistance plans to uphold victims’ rights and support their needs, while also

providing options for funding mechanisms to support these efforts.

UN General Assembly resolution 60/288 of 8 September 2006, “The United Nations Global Counter-Terrorism Strategy”, annex,

Plan of Action, Pillar I, para. 8.

UN General Assembly resolution 72/284 of 2 July 2018, “The United Nations Global Counter-Terrorism Strategy Review”, para. 60.

UN General Assembly resolution 73/305 of 28 June 2019, “Enhancement of international cooperation to assist victims of terrorism”.

Report of the Secretary-General on progress made by the United Nations system in supporting Member States in assisting victims

of terrorism (A/74/790), 8 April 2020, para. 58.

Ibid., para. 13.

Ibid., section III.

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The sixth and seventh review resolutions of the General Assembly (resolutions 72/284 and 75/291)

on the Global Counter-Terrorism Strategy stressed the need for Member States to build their capacity

to provide proper support and assistance to victims and their families immediately after an attack

and in the long term to share best practices and lessons learned related to the support of victims of

terrorism, including regarding the provision of legal, medical and psychosocial or financial support.

In 2015, UNODC published

Good Practices in Supporting Victims of Terrorism within the Criminal

Justice Framework,

which provides strategies to implement laws and to build institutional capacity

to incorporate victims of terrorism into criminal justice investigations and prosecutions. UNODC also

developed a handbook in 2011,

The Criminal Justice Response to Support Victims of Acts of Terrorism.

This resource takes stock of national experiences, programmes and legislation to support victims of

acts of terrorism and addresses relevant international standards and norms.

In 2018, the United Nations Counter-Terrorism Centre (UNCCT) of the UNOCT published its

Handbook

of Good Practices to Support Victims’ Associations for Africa and the Middle East.

A second handbook

on Asia and the Pacific is currently in development. The handbooks will provide a set of guiding

principles and practices for victims’ associations to better support victims of terrorism.

The Model Legislative Provisions were developed starting in 2020 under the Inter-Parliamentary

Union(IPU)-United Nations Joint Programme on Countering Terrorism and Violent Extremism, which

supports parliamentary actions on counterterrorism and preventing violent extremism through a

“whole-of-society” approach. The project was implemented by the IPU, UNOCT and UNODC, in close

cooperation with United Nations entities, victims, civil society organizations and regional parliamentary

organizations, such as the Parliamentary Assembly of the Mediterranean, the Parliamentary Assembly

of the Organization for Security and Cooperation in Europe and the Inter-Parliamentary Assembly of

Member Nations of the Commonwealth of Independent States.

Methodology:

The partnership convened an online Expert Consultation on Model Legislative Provisions

regarding victims of terrorism on 14-15 July 2020, followed by a series of virtual expert consultations

gathering academics, parliamentarians, members of Government, civil society actors and victims of

terrorism, from November 2020 until January 2021. These consultations highlighted good practices

and challenges in approaching these issues by way of model legislative provisions. In practice, they

identified additional matters to be addressed by model provisions, and suggested drafting language.

Two consultant drafters, Professor Ben Saul and Professor Jeanne Sulzer, assisted UNOCT, UNODC

and IPU in the drafting of the Model Legislative Provisions. A group of experts in the field of victims’

rights, from a variety of legal and geographical backgrounds, met in June 2021 to discuss and review

the draft of the Model Provisions.

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Model Legislative Provisions

TO SUPPORT THE NEEDS AND PROTECT THE RIGHTS OF VICTIMS OF TERRORISM

[OPTION] The use, if any, of a preamble and its content and purpose will vary according

to the legal culture and the country context. The provisions here are drawn in part

from relevant United Nations General Assembly and Security Council resolutions and

other instruments related to victims of terrorism.

Preamble

The [Parliament/Government] of [name of State],

Deeply deploring

the suffering caused by terrorism to the victims and their families, expressing its

profound solidarity with them, and stressing the importance of properly assisting them,

Reaffirming

that promoting and protecting human rights for all and respect for the rule of law at the

national and international levels are the essential bases for all measures to prevent and combat

terrorism,

Recognizing

that effective counter-terrorism measures and the protecting of human rights are not

conflicting goals, but are complementary and mutually reinforcing, and stressing the need to promote

and protect the rights of victims of terrorism,

Recalling

the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power

(General Assembly resolution 40/34, annex, of 29 November 1985) and the 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 (General Assembly

resolution 60/147, annex, of 21 March 2006),

Recalling

the adoption of the United Nations General Assembly resolution 72/165 of 19 December

2017, entitled “International Day of Remembrance of and Tribute to the Victims of Terrorism” and

Assembly resolution 73/305 of 2 July 2019 entitled “Enhancement of international cooperation to

assist victims of terrorism,”

Acknowledging the importance

of building the resilience of victims and their families as an integral part

of a counter-terrorism strategy, including by upholding their rights, in accordance with international

law; and of properly supporting and assisting them immediately after an attack and in the long term;

and of sharing on a voluntary basis best practices and lessons learned related to their protection,

including regarding the provision of legal, medical, psychosocial or financial support,

Condemning unequivocally

all acts, methods and practices of terrorism in all its forms and

manifestations, wherever and by whomsoever committed, regardless of their motivation, as criminal

and unjustifiable, while emphasizing that terrorism and violent extremism conducive to terrorism

cannot and should not be associated with any religion, nationality, civilization or ethnic group,

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Strongly condemning

all forms of sexual and gender-based violence perpetrated by terrorist groups,

including abductions, trafficking in persons, rape, forced marriage, enslavement and all other forms

of violence, especially that suffered by women and children, and stressing the importance of closing

the impunity gap for perpetrators and increasing rehabilitation and reintegration measures for victims,

Renewing its commitment

to hold accountable, in accordance with international law, including

international human rights law, international humanitarian law and international refugee law, any

person who participates in the financing, planning, preparation or perpetration of terrorist acts or in

supporting terrorist acts; and to cooperate internationally to that end,

Recognizing

that terrorism has a detrimental effect on and impedes the full enjoyment of the human

rights and fundamental freedoms of victims, including civil, political, economic, social and cultural

rights, and the rights of victims with additional vulnerabilities,

Stressing the need

to promote and protect the rights of victims of terrorism in order to help them to

rebuild their lives, including their rights to assistance, reparation, truth, protection, information, and

access to justice,

Recognizing

that all measures to support and assist victims of terrorism must be consistent with

international law, including international human rights law, international humanitarian law and

international refugee law,

Stressing

the need to ensure that the suffering of victims must not be instrumentalized and expressions

of solidarity with them must not be used to justify abusive or excessive counter-terrorism measures

incompatible with international law,

Emphasizing

that measures to support and assist victims of terrorism must ensure non-discrimination

and equality among victims of all crimes to avoid creating any hierarchy among victims; and that

any difference in treatment afforded to victims of acts of terrorism, as distinct from victims of other

crimes, should be based upon their specific needs in accordance with international law,

Highlighting the importance,

in supporting and assisting victims, of effective coordination and

cooperation among relevant governmental authorities, civil society organizations, including victims’,

community-based and grassroots organizations, and private-sector providers,

Recognizing

the decisive role that victims of terrorism, and as well as victims’ organizations and

civil society actors, can play in efforts to counter terrorism by making their voices heard, including in

reducing tensions in society that might themselves contribute to conditions conducive to terrorism,

Be it enacted

by the [National Assembly/Parliament/other] of [name of State] during its [number]

session on [date]:

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Model Legislative Provisions

TO SUPPORT THE NEEDS AND PROTECT THE RIGHTS OF VICTIMS OF TERRORISM

Chapter I. General Provisions

Article 1: [Title]

This Law may be cited as [XXX] of [name of State] [year of adoption].

Article 2: Commencement

This [Law] shall come into force on [date].

Article 3: General principles

1. The purposes of this [Law] are:

a. To protect [respect, and ensure] the rights of victims of terrorism, including by ensuring:

Necessary assistance (medical, psychological, social, and material);

satisfaction, and truth), cessation, and guarantees of non-repetition;

iii. Protection of physical and psychological integrity, privacy and reputation;

iv. Access to justice in all criminal, civil and administrative proceedings and processes related

to being a victim;

v. Access to information about the above rights and remedies.

b. To promote and facilitate national and international cooperation in order to advance the above

purposes.

2. All measures in this [Law] shall be interpreted and applied in a way that is consistent with

international law, including international human rights law, international humanitarian law, and

international refugee law.

3. Victims of terrorism shall be free from discrimination of any kind, such as on the basis of race,

colour, sex, language, religion, political or other opinion, national or social origin, property, birth and

other status.

4. All measures in this [Law] shall be guided by:

a. A human rights-based approach ensuring non-discrimination and equal treatment of all

victims, including victims of other forms of crime, human rights violations and conflict-related

violence, as well as communities who are equally impacted by violence and in need of support.

b. A victim-centred approach, and adherence to the principle of “do no harm” with respect to

the rights, dignity, and well-being of victims. Such approach should actively engage victims

to fully understand the harms suffered and their rights and needs, and enable them to play

ii. Adequate, effective, and prompt reparation (including restitution, compensation,

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active and participatory roles in measures to support and assist them, without fear of stigma,

reprisal or secondary victimization.

c. Attention to victims’ personal circumstances and intersectional vulnerabilities, including

gender, age, disability, special needs, and social, economic and cultural circumstances, in

particular through specialized and multi-disciplinary responses.

5. Specific attention should be given to vulnerable victims, including children, of sexual violence and

trafficking in persons in all its forms. In particular, victims should not be punished or prosecuted

for offences committed in the course, or as a consequence, of being trafficked, sexually enslaved,

or born into a terrorist group; or for merely being perceived as associated with terrorist groups as

spouses, partners or dependants of members of a terrorist group.

6. This [Law] shall be implemented in a manner that applies a gender lens to all provisions,

emphasizing equality in relation to all gender-related impacts of terrorism.

7. The [competent authorities] shall ensure that all legal processes against alleged perpetrators

(including investigation, detention, prosecution and sentencing, and related protective measures

for victims) are gender sensitive, including by mainstreaming gender into all relevant policies, laws

and procedures, programmes and practices.

COMMENTARY

Article 3, paragraph 1

helps identify the objectives of the Law (including by reference

to the main issues addressed in other Chapters of the Law) and how it is to be applied.

It may need to be adjusted to reflect how each state enacts this Law. In some legal

systems, a statement of purpose or the identification of principles underpinning the

legislation can be used to help inform the interpretation of its operative paragraphs.

Paragraph 2

indicates that all measures to assist victims must be consistent with

international law, particularly human rights law, refugee law, and international

humanitarian law. Furthermore, the international framework on the rights of victims

of crimes, grave human rights violations, and serious violations of international

humanitarian law, applies

mutatis mutandis

to victims of terrorism. These include

amongst others, key international treaties

and relevant United Nations resolutions,

Such as the Convention on the Prevention and Punishment of the Crime of Genocide, of 1948; the four Geneva Conventions of 1949

and their two Additional Protocols of 1977; the International Convention on the Elimination of All Forms of Racial Discrimination,

of 1965; the International Covenant on Civil and Political Rights, of 1966, and the International Covenant on Economic, Social

and Cultural Rights, of 1966; the Convention on the Elimination of All Forms of Discrimination against Women, of 1979; the

United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, of 1984; the Rome

Statute of the International Criminal Court, of 1998; the Convention on the Rights of Persons with Disabilities, of 2006; and the

International Convention for the Protection of all Persons from Enforced Disappearances, of 2006.

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Model Legislative Provisions

TO SUPPORT THE NEEDS AND PROTECT THE RIGHTS OF VICTIMS OF TERRORISM

including the 1985 United Nations General Assembly Declaration of Basic Principles of

Justice for Victims of Crime and Abuse of Power, and the 2005 United Nations 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 2012

Framework principles for securing the human rights of

victims of terrorism

of the Special Rapporteur on the promotion and protection of human

rights and fundamental freedoms while countering terrorism provides further guidance

on how to implement these frameworks.

Further, paragraph 2 implies that nothing in the Law shall be interpreted as providing a

lesser degree of protection than that provided under international law, including applicable

human rights conventions concerning the administration of and access to justice.

Paragraph 3

affirms the internationally recognized principle of non-discrimination, which

is subject to neither limitation nor derogation.

Aside from being unlawful, a discriminatory

implementation of victim assistance measures may exacerbate the harm suffered; for

example, by inappropriately denying specific types of services to victims of terrorism

based on their religion, ethnicity, nationality, age or gender. For this reason, it is extremely

important that States interpret and apply their domestic laws in a non-discriminatory and

non-arbitrary way and subject to appropriate and effective supervision by relevant State

authorities. An alternative example of wording to protect against non-discrimination

under the Law is as follows: “The measures set forth in this Law shall be interpreted and

applied in a way that does not discriminate against persons on any ground prohibited

under international law, including that they are victims of terrorism.”

Paragraph 4(a)

emphasizes that all victims of crime, including of international crimes and

serious violations of human rights, are entitled to the protection of their rights without

discrimination. This Law is not intended to create a hierarchy of victims or privilege

victims of terrorism over others. Rather, it draws attention to certain characteristics of

the experience of victims of terrorism which require specific legal treatment, and other

victims may or may not share the need for some or all of these measures.

United Nations Human Rights Committee, General Comment No. 29, Article 4: Derogations during a State of Emergency, 2001,

para. 8 (“According to article 4, paragraph 1, one of the conditions for the justifiability of any derogation from the Covenant

is that the measures taken do not involve discrimination solely on the ground of race, colour, sex, language, religion or social

origin”); Commission on Human Rights, report of the High Commissioner submitted pursuant to General Assembly resolution

48/141, Human rights: a uniting framework (E/CN.4/2002/18), 2002, annex, Proposals for “further guidance” for the submission

of reports pursuant to paragraph 6 of Security Council resolution 1373 (2001) (“For limitations of rights to be lawful they must: (i)

Respect the principle of non-discrimination’); report of the Special Rapporteur on the promotion and protection of human rights

and fundamental freedoms while countering terrorism, Martin Scheinin (E/CN.4/2006/98), para. 48 (non-discrimination cannot

be limited or derogated from, including in counter-terrorism; and referring also to UN General Assembly and Security Council

resolutions on the issue).

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Paragraph 4(b)

underlines the need for States to take a victim-centered approach in

addressing the rights and needs of victims of terrorism. The approach should include

an analysis and full understanding of the harm suffered and of the victims’ needs to be

reflected in the support and assistance provided. Victims of terrorism should be enabled

to play active and participatory roles in the process of obtaining support without fear of

stigma and reprisals. In this regard, States should support and recognize the important

role of victims’ associations and other civil society organizations in advocating for

victims. This Law further requires adherence to the principle of “do no harm”, in order

to uphold victims’ rights, dignity and well-being. This may entail the implementation of

security measures to protect against retaliation, and secondary victimization

(addressed

in detail in Chapter VII).

Paragraph 4(c)

focuses attention on victims’ personal circumstances and particular

intersectional vulnerabilities. The Law must be applied in a manner that is sensitive to

factors such as gender, age, disability, special needs, and relevant social, economic and

cultural circumstances. It is widely understood that the principle of non-discrimination

requires consideration of how laws, programmes or policies may be neutral on their

face but have adverse impacts on particular groups of individuals. In this context, an

intersectional approach may be adopted which takes into account not only gender, but

also other characteristics that interrelate with gender for ensuring that all victims’ rights

are protected.

The term “associated with” here is not to be used in a way that creates

a perceived affiliation with terrorist groups when none exists, as is particularly the case

of children born in terrorist-controlled areas.

Paragraph 5

addresses the principle of non-punishment of victims of trafficking and

sexual violence by terrorist groups. The right to non-punishment can be considered as

“the beating heart” of victims’ human rights protection at the international, regional and

domestic level. It must be given high-level prominence since it relates to the unassailable

legal right of the victim to be protected by law.

The punishment of victims of trafficking

for crimes they committed directly related to their trafficking is a denial of justice and

that it blames victims for crimes they would not have committed but for their status

UNHCR, Policy on a Victim-Centred Approach in UNHCR’s response to Sexual Misconduct (UNHCR/HCP/2020/04).

UNODC,

Handbook on Criminal Dimensions of Criminal Justice Responses to Terrorism,

p. 62.

UN Special Rapporteur on trafficking in persons, especially women and children, “The importance of implementing the non-

punishment provision: the obligation to protect victims” (see

https://www.ohchr.org/EN/Issues/Trafficking/Pages/non-

punishment.aspx),

30 July 2020, para. 9.

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Model Legislative Provisions

TO SUPPORT THE NEEDS AND PROTECT THE RIGHTS OF VICTIMS OF TERRORISM

trafficked persons. To punish victims in such circumstances would depart from a

long-established criminal law principle, common to most legal systems, that only those

who freely choose to commit crimes should be punished. The principle is not intended

to confer immunity on a victim merely because they are a victim, but because as a

result of force or other coercion by traffickers the victim has acted involuntarily.

The

non-punishment principle is contained in the OHCHR’s 2002 Recommended Principles

and Guidelines Principles and Guidelines on Human Rights and Human Trafficking,

Principle 7: [t]rafficked persons shall not be detained, charged or prosecuted for the

illegality of their entry into or residence in countries of transit and destination, or for

their involvement in unlawful activities to the extent that such involvement is a direct

consequence of their situation as trafficked persons.

Paragraph 6

applies a gender perspective to implementation of the Law, to understand

differences in status, power, roles and needs, and the impact of gender on people’s

opportunities and interactions. According to the definition of UN Women gender “refers

to the social attributes and opportunities associated with being male and female

and the relationships between women and men and girls and boys, as well as the

relations between women and those between men. These attributes, opportunities and

relationships are socially constructed and are learned through socialization processes.

They are context/ time-specific and changeable. Gender determines what is expected,

allowed and valued in a woman or a man in a given context. In most societies there

are differences and inequalities between women and men in responsibilities assigned,

activities undertaken, access to and control over resources, as well as decision-making

opportunities. Gender is part of the broader socio-cultural context. Other important

criteria for socio-cultural analysis include class, race, poverty level, ethnic group and

age”.

According to the Special Rapporteur on the promotion of truth, justice, reparation and

guarantees of non-recurrence, a gender-sensitive approach or perspective “involves the

duty to consider and address the views, experiences, and needs of all individuals with

UNODC, Guidance on the issue of appropriate criminal justice responses to victims who have been compelled to commit

offences as a result of their being trafficked, CTOC/COP/WG.4/2020/2, para 20, citing OSCE Office of the Special Representative

and Coordinator for Combating Trafficking in Human Beings, Policy and legislative recommendations towards the effective

implementation of the non-punishment provision with regard to victims of trafficking, 2013, p. 10 and referencing OHCHR,

Commentary: Recommended Principles and Guidelines on Human Rights and Human Trafficking (United Nations publication,

Sales No. E.10.XIV.1), pp. 132–133.

OHCHR, 2002 Recommended Principles and Guidelines Principles and Guidelines on Human Rights and Human Trafficking, Principle 7.

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diverse sexual orientation and gender identities, while acknowledging the complexity

and intersectionality of their experiences and maintaining a holistic and relational

focus.”

Paragraph 7

specifically applies a gender lens to accountability for terrorism, based

on the UNODC Handbook on Gender Dimensions of Criminal Justice Responses to

Terrorism, which states: “adopting a gender-sensitive approach to investigations is a key

way of operationalizing gender mainstreaming principles”.

Article 4: Scope of application

This Law shall apply to all victims of terrorism, regardless of:

a. Whether terrorism is domestic or transnational;

b. Whether the perpetrator is identified, designated, apprehended, prosecuted, or convicted and

irrespective of their perceived status or affiliation;

c. Any familial or other relationship between the perpetrator and the victim; and

d. Whether the victim initiates or cooperates with an investigation or any other accountability

process.

COMMENTARY

Article 4

addresses the scope of application of the Law.

Paragraph (a)

applies the Law regardless whether terrorism is domestic (for instance,

committed in a single state involving only victims and perpetrators with the nationality

of that state and still located there) or involves a transnational element of any kind.

Security Council resolution 1373 (2001) requires States to criminalize all acts of

terrorism, not only those which have a transnational dimension.

See report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Fabián Salvioli

(A/75/174), 17 July 2020, paras. 4-5.

UNODC Handbook on Gender Dimensions of Criminal Justice Responses to Terrorism, p. 62.

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Paragraph (b)

applies the Law regardless whether the perpetrator is identified or

held accountable. This is supported at the international level by several UN General

Assembly resolutions, including resolutions 40/34 of 29 November 1985: “a person may

be considered a victim, under this Declaration, regardless of whether the perpetrator

is identified, apprehended, prosecuted or convicted and regardless of the familial

relationship between the perpetrator and the victim;

and 73/305 of 28 June 2019, which

“emphasizes that the granting of such assistance should be provided, in accordance

with domestic law, to victims of terrorist acts regardless of whether the perpetrator

of the terrorist act is identified, apprehended, prosecuted or convicted”.

It is also

supported by the United Nations Committee against Torture, in its General comment

No. 3, 2012

and regionally by the African Commission on Human and Peoples’ Rights,

in its General Comment No. 4.

Paragraph (c)

applies the Law to victims regardless of any familial relationship to

a perpetrator of terrorism. Victims of terrorism should not be deemed “guilty by

association” with others involved terrorism and have their needs for assistance denied

on that basis; victims’ rights must be guaranteed without discrimination.

Paragraph (d)

recognizes that eligibility for victim assistance must not be conditioned

on a victim’s cooperation with law enforcement authorities. Victims’ rights are inherent

in the person because they are a victim, not as a reward for behavior which States may

wish to encourage.

See A/RES/40/34, para. 2.

See A/RES/73/305, para. 4.

United Nations Committee against Torture, General Comment No. 3, 2012, “Convention against Torture and Other Cruel, Inhuman

or Degrading Treatment or Punishment: implementation of article 14 by States parties”, 13 December 2012, para. 3.

African Commission on Human and Peoples’ Rights, General Comment No. 4 on the right to redress for victims of torture and

other cruel, inhuman or degrading punishment or treatment (Article 5), Adopted at the 21st Extra-Ordinary Session of the African

Commission on Human and Peoples’ Rights, held from 23 February to 4 March 2017, paras. 16-17.

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Chapter II. Jurisdictional application

Article 5: Jurisdictional application

1. This [Law] applies to every victim of terrorism committed within the territory or subject to the

jurisdiction of [name of State].

2. This [Law] also applies to every national [and habitual resident] of [name of State] who is the victim

of terrorism committed outside the territory or jurisdiction of [name of State].

3. Where a victim under paragraph 1 [or paragraph 2] is not present in the territory or subject to the

jurisdiction of [name of state], this [Law] shall apply to the victim to the extent necessary and

possible.

COMMENTARY

Paragraph 1: Victims of Terrorism Committed in a State’s Territory or Jurisdiction

Territory and Jurisdiction: The Law is grounded in the principle that, at a minimum, a

State should assist and protect victims of terrorism committed in the State’s territory. In

addition, the Law applies to victims of terrorism committed in any areas beyond national

territory where the State exercises jurisdiction, by analogy with the extraterritorial

application of international human rights law.

“Every victim”: Application to “every victim” emphasizes that, with regard to acts of

terrorism committed in the territory or jurisdiction of the state, the Law applies to

all persons without discrimination, and must not be restricted to nationals, habitual

residents, or persons lawfully present in the State’s territory. The Law is grounded in

human rights principles of equality and dignity, and the territorial/jurisdictional State will

often be best or well placed to provide assistance, protection and reparation, including

in the emergency phase immediately after an attack. Ordinary victims of crime schemes

are also not necessarily restricted to nationals or residents.

Paragraph 2 (Optional): Victims of terrorism committed abroad

Paragraph 2

enables the Law to be optionally applied to victims of terrorism committed

outside of the State’s territory or jurisdiction. States may wish to assist and protect

See, e.g., ICCPR, art. 2(1).

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their nationals, and habitual residents, when they are victims of terrorism abroad, as

when visiting, working, or living in another State. Such persons may have acute ongoing

needs; may not enjoy legal rights in the foreign State; or may not be able to practically

access any available foreign support.

The Law does not preclude States from also, if they wish, protecting non-nationals

or non-habitual residents who were victims of terrorism abroad, for instance where

they are present in the state’s territory (as opposed to helping all victims of terrorism

world-wide

in absentia).

They could include foreign visitors or workers, other migrants

(regular or irregular), refugees (including “war refugees”) or Stateless persons, or

persons who were evacuated from a neighboring State for medical, humanitarian or

emergency reasons.

Paragraph 3: Continuity of assistance abroad

The legal and functional capacities of a State to provide assistance, protection,

reparation and access to justice, and the ability of a victim to receive them, will commonly

depend on the victim’s presence in the state’s territory or jurisdiction, where the State

can exercise its fullest governmental and regulatory authority. A State’s capacities will

evidently be greatest where a victim is within the State’s territory, although where it

exercises extraterritorial jurisdiction, the state may also be able to apply the Law to the

extent of its jurisdiction.

Paragraph 3

separately recognizes that the Law should continue to apply to the extent

possible where an eligible victim is

not

(or is

no longer)

physically present within the

State’s territory or jurisdiction. This includes victims of terrorism committed in the

State’s territory or jurisdiction (under paragraph 1) or abroad (under paragraph 2) who

have since left the State. In the case of nationals or habitual residents who were victims

of terrorism abroad, it could also include where such persons have not returned from

abroad since becoming victims.

Given the potential legal and practical challenges in helping victims who are outside

the State’s territory or jurisdiction, paragraph 3 is cast as a contextual duty to apply the

Law “to the extent possible”, rather than as a strict obligation to apply all provisions in

full. Thus, for example, victims abroad could still be provided with information about

their rights as victims (as under Chapter VIII of this Law), be paid compensation or a

disability pension, receive restitution of local property, or enjoy rights to participate

in legal proceedings. On the other hand, certain measures under the Law may be

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impossible to fulfil for victims in absentia, such as provision of medical or psychological

care or socio-economic rights, or access to services or service providers.

Depending on the measure, assisting victims abroad may depend on coordination and

cooperation with the foreign State in which the victim is present. Article 6(2) addresses

international cooperation.

The qualification to assist victims abroad “to the extent… necessary” acknowledges

a victim’s rights will sometimes already be effectively guaranteed in the other State

(where they are present), in which case there may be no need for both States to

duplicate the same measures. Again, international cooperation will be an important

means by which overlapping entitlements can be deconflicted and coordinated.

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Chapter III. Definitions

The definitions and their commentaries in this Chapter may assist legislators when enacting or

applying this Law. Clearly drafted laws are critical to promoting the rule of law because they ensure

that the victims can know the roles and responsibilities of the State and those who act on behalf of it

and the rights, services and entitlements that are available. Some of the concepts in this Chapter are

further elaborated in other Chapters of this Law, as are other key concepts not defined in this Chapter.

Legislators are best placed to decide what terms should or should not be defined in their national laws.

“Child” and “children”

refer to any person(s) under the age of 18 years.

COMMENTARY

“Children” means human beings under the age of 18 years, in accordance with article 1

of the Convention on the Rights of the Child.

“Reparation”

means full, adequate, effective and prompt redress for terrorist harm suffered by a

victim, proportional to the gravity of the terrorist act and the harm suffered. It includes: restitution,

compensation, rehabilitation, satisfaction, and guarantees of non-repetition.

COMMENTARY

This definition is based on 2005 Basic Principles and Guidelines on the Right to a

Remedy and Reparation for Victims of Gross Violations of International Humanitarian

Law, paras. 15-23, annexed to Commission on Human Rights resolution 2005/35.

“Secondary victimization”

means victimization that occurs not as a direct result of the criminal act

but through the response of institutions and individuals to the victim.

See also UNODC,

Handbook on Children Recruited and Exploited by Terrorist and Violent Extremist Groups: The Role of the Justice

System

(2017), p. 57 (international cooperation regarding child victims and witnesses).

See e.g. United Nations General Assembly resolution 73/174 of 17 December 2018 (Terrorism and human rights), para. 7; Directive

(EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council

Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA, art. 26 (Rights of victims of terrorism

resident in another Member State), cf. also art. 24 (3)(b) on advice, information and facilitation; Council of Europe Guidelines on

the Protection of Victims of Terrorist Acts, art. V (2) (continuing assistance to non-residents through cooperation with the State of

residence). For concrete recommendations see Supporting Victims of Terrorism – Report of the International Network Supporting

Victims of Terrorism and Mass Violence Symposium in Stockholm (2018), pp. 59-61.

European Convention on the Compensation of Victims of Violent Crimes (CETS No. 116) of 24 November 1983, Part II (“give

the maximum possible assistance” to a requesting State on matters covered by the Convention); Directive 2012/29/EU of the

European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection

of victims of crime, and replacing Council framework decision 2001/220/JHA (directive 2012/29/EU), art. 26 (1) (cooperation to

improve victims’ access to rights, including through exchange of best practices, consultation in individual cases, and assistance

to relevant networks); Council of the European Union Directive 2004/80/EC of 29 April 2004 relating to compensation to crime

victims (cooperation to facilitate cross-border access to compensation); Directive 2011/99/EU of the European Parliament and of

the Council of 13 December 2011 on the European protection order (mutual recognition of protection measures); Recommendation

Rec(2006)8 of the Committee of Ministers to member States on assistance to crime victims, art. 15 (1) (cooperation in assistance)

and (2) (cooperation with state of residence in protection, reporting and judicial process).

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information and coordination of administrative and other measures

(as distinct from

formal cooperation through mutual assistance in legal proceedings). The provision

applies such measures to other areas addressed by the Law: assistance, protection,

reparation, information, and access to justice for victims. The provision is additional to

any cooperation measures in those specific areas under the Law.

Cooperation could pertain, for example, to the identification of victims and relatives or

of offenders and terrorist groups; the cross-border provision of information to victims; or

the availability of, eligibility for, or receipt of assistance, protection or reparation; sharing

of medical, assistance, protection, law enforcement or judicial records; or facilitating the

repatriation of injured or deceased victims (for instance through provision of necessary

travel and medical clearances and documentation). It will be particularly important

where a victim in one State is applying for, or seeking to implement, rights to assistance,

protection, or reparation in another state (including where the victim may also enjoy

certain victim rights in the first State).

The provision leaves it to States to determine the modalities of information exchange

and coordination, but this could be achieved through, for example, law enforcement

cooperation (such as police, intelligence, security, border, immigration, customs and

forensic agencies), diplomatic channels, dedicated communication channels

(which

could include the coordination body under this Chapter), direct communications between

victim service providers, the posting of liaison officers,

and modern technology. Bilateral

or multilateral agreements could also be concluded to formalize such cooperation.

The optional provision in paragraph 3(c)

encourages assistance to other States in need,

based on relevant UNTOC provisions

as adapted to the context of victim rights under

the Law. Such assistance aims to strengthen the capacity of other States to provide

assistance, protection, reparation and access to justice to victims. The provision is

See, e.g., 2000 United Nations Convention on Transnational Organized Crime (UNTOC), art. 27 (1)(f) (“To exchange information and

coordinate administrative and other measures taken as appropriate or the purpose of early identification of the offences covered

by this Convention”).

See, e.g., UNTOC, art. 27 (1)(a).

See, e.g., UNTOC, arts. 27 (1)(d) (law enforcement) and 29 (3) (training and technical assistance to facilitate extradition and MLA,

through language training, secondments and exchanges between personnel in central authorities or agencies).

See, e.g., UNTOC, art. 27 (2) (law enforcement cooperation).

See, e.g., UNTOC, articles 30 (implementation of the Convention through economic development and technical assistance),

29 (2)-(4) (law enforcement training and technical assistance through cooperative measures) and 27 (1)(d) (law enforcement

cooperation through exchange of personnel and experts and posting of liaison officers).

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framed as a duty to make ‘concrete efforts to the extent possible’

rather than as a

strict duty to actually provide technical assistance, given the different capacities of

different States to make such contributions.

Assistance could be directed, for example, towards the drafting of laws to protect

victims; the establishment, training, skilling or improvement of victim institutions or

procedures (such as assistance service providers (medical or material), reparation

or transitional justice mechanisms, legal aid, the courts, or protective measures); or

measures to improve the accountability and responsiveness of victim frameworks.

Assistance could involve the direct provision of skills or expertise (such as through

training, secondments, or personnel exchanges

) or through material or financial

assistance

(such as provision of equipment,

logistics, facilities, infrastructure, or

salaries).

Assistance may be provided bilaterally or through multilateral mechanisms, including

by concluding bilateral or multilateral agreements or arrangements.

Financial

contributions could be made through, for example, adequate and regular voluntary

contributions through United Nations funding mechanisms.

Assistance should,

however, be without prejudice to existing foreign-assistance commitments or to other

financial-cooperation arrangements at the bilateral, regional or international level.

UNTOC, art. 30(2).

See, e.g., UNTOC, art. 29 (3); see also art. 27 (1)(d) (exchange of personnel and experts, and posting of liaison officers).

UNTOC, art. 30 (2)(b) (“To enhance financial and material assistance to support the efforts of developing countries to fight

transnational organized crime effectively and to help them implement this Convention successfully”).

See, e.g., UNTOC art. 30 (2)(d).

See, e.g., UNTOC, art. 30 (4) (on material and logistical assistance).

See, e.g., UNTOC, art. 30 (2)(c).

See, e.g., UNTOC, art. 30 (3).

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Article 7: Registry of victims

Immediately after a terrorist act, the [coordination body] shall establish a Registry of Victims, the

functions of which shall be to:

a. Register individual and collective victims on the basis of their informed consent, unless the

person is incapable of consenting;

b. Take effective measures to promote and facilitate registration, and to avoid secondary

victimization through registration, including through special measures:

for persons with particular vulnerabilities, including children, the elderly, persons with

disabilities, victims of sexual and gender-based violence, minorities and indigenous

peoples, displaced persons, and illiterate persons;

ii. to ensure victims can register safely, particularly in areas affected by conflict or insecurity.

c. Identify victims requiring urgent assistance due to the nature or gravity of the harm suffered or

particular vulnerabilities, including in situations under paragraph (b) of this Article.

COMMENTARY

Article 7

addresses the creation of a Registry of Victims of terrorism to ensure that

victims can be accurately identified and measures under the Law can be effectively

provided. It is considered as a good practice by the UN Special Rapporteur on the

promotion of truth, justice, reparation and guarantees of non-recurrence: “Individual and

collective registries of victims are crucial in order to have realistic projections of the

level of victimhood in States undergoing transitions. They help in estimating the cost

of redressing the potential beneficiaries of the programme and in planning resource

allocation. Registries could also facilitate reparation for victims in urgent need of

attention, through urgent reparation programmes. They also constitute a key measure

of acknowledgment, satisfaction and memory”.

Procedurally, it is recommended good practice that the [competent authorities] develop

a registration form in consultation with victims’ associations, limited to registering

essential basic personal information, a statement of facts and harm suffered, any

confidentiality concerns of the victim and/or beneficiaries, and, where appropriate,

including supporting documents. Where relevant, specific forms may be used to clarify

UN Human Rights Council, report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-

recurrence on the Promotion of truth, justice, reparation and guarantees of non-recurrence (A/HRC/42/45), 11 July 2019, para. 47.

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the range of collective victims, including the name of the community, the facts, and the

harms suffered.

The Registry must comply with the provisions on privacy, confidentiality and protection

of personal data in Article 21 of this Law.

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Chapter V. The right to assistance

Article 8: Right to assistance

1. The [competent authorities] shall ensure that victims of terrorism receive the material, medical,

psychological and social assistance that is necessary to meet their needs as victims. In particular:

a. Medical and psychological assistance provided by the [public health authorities and other

entities] shall include:

Emergency, curative and rehabilitative treatment and services to address illness, injury and

disability;

ii. Psychological treatment and counselling, and emotional support;

iii. Pharmaceuticals and medical or health items, including disability-assistance items and

devices.

b. Material assistance provided by the [competent authorities or other entities] shall include

measures concerning:

Basic needs, including food, water, housing, sanitation, clothing and essential services

(such as energy, transport and communications);

ii. Employment, livelihood or other means of subsistence;

iii. Individual or communal property, resources and infrastructure;

iv. The environment.

c. Social assistance provided by the [competent authorities or other entities] shall include

measures concerning:

Education and training;

ii. Social rehabilitation;

iii. Protection of family and child rights;

iv. Measures to ensure accessibility for persons with disabilities;

v. Protection of cultural and religious rights.

d. Assistance shall also include the provision by the [competent authorities or other entities] of:

Legal, professional and support services related to being a victim;

ii. Funeral and burial services;

iii. Any other relevant goods or services [including replacement of documents].

e. Humanitarian assistance shall be provided by the [competent authorities or other entities]

without discrimination, including on the basis of gender or perceived status or affiliation,

pursuant to the principles of humanity, neutrality and impartiality.

2. Assistance may be provided through governmental, voluntary, community-based or other means.

Whatever means are used:

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a. The [coordination body] shall ensure that:

The necessary assistance is provided to victims;

ii. It effectively coordinates the provision of assistance [including through individual case

managers where feasible].

b. The [competent authorities] shall ensure that:

All [providers of assistance] are effectively regulated to ensure respect for human rights

and compliance with all quality and professional standards prescribed by this Law and

other relevant laws, including through remedial measures and sanctions;

ii. Assistance is adequately funded.

3. Assistance may be proportionally reduced where a victim has received support or a remedy, under

other chapters of this [Law], in relation to the same harm arising from the same terrorist act.

COMMENTARY

The 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse

of Power recognizes that all victims of crime should receive “the necessary material,

medical, psychological and social assistance” to address the harm suffered.

Assistance

complements other measures to support victims. Restitution aims to restore the victim

to the original situation before the crime occurred where that is possible.

Restitution

may, however, not be possible because of the irreversible consequences of a terrorist

act,

as where victims’ property has been destroyed; their place of residence remains

unsafe due to continuing conflict; or they have suffered injuries or disabilities of such a

nature as to preclude the resumption of their former employment or livelihood.

Where restitution is not possible, compensation and assistance (including rehabilitation)

aim to remedy the victim’s situation

as far as possible.

Whereas compensation does

so through monetary payments, assistance usually involves direct (non-monetary)

measures to support the victim (although it can also involve monetary payments, such

as a disability or injury pension where a victim is no longer able to work). Assistance

aids the victim to adjust to their new situation, including by providing substitutes,

replacements, or alternatives for the rights or interests which were destroyed or rendered

1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, para. 14.

2005 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, para. 19.

Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering

terrorism, Ben Emmerson, “Framework Principles for Securing the Human Rights of Victims of Terrorism” (A/HRC/20/14), 4 June

2012, para. 51.

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inaccessible. Examples include medical or psychological care or rehabilitation to treat

injuries; assisting a victim with disabilities to acquire a suitable new job where they

can no longer perform their prior role; or providing replacement housing or land where

a person’s house or land was destroyed or is inaccessible.

Paragraph 1: Types of assistance

The 1985 Declaration does not elaborate on the content of the categories of assistance

but each encompasses a range of possible measures, reflecting the variety and breadth

of terrorist harms that may be suffered. There are no types or levels of assistance which

must be automatically provided to every victim. Article 5 is an obligation to provide, or to

ensure the provision of, “assistance that is necessary” in the victim’s circumstances,

reflecting that individual needs will vary depending on the nature of the crime and the

personal characteristics and situation of the victim. Identifying the appropriate suite of

measures necessarily requires an individual assessment of the needs of each victim,

as Article 6 addresses. This should not be understood as undermining victims’ non-

discriminatory access to economic, social and cultural rights.

Medical and Psychological Assistance

Paragraph 1(a) outlines the different components of medical and psychological

assistance, based on international standards. Medical treatment must address both

physical and mental/psychological harms

arising from a terrorist act. Medical care

includes both curative (whether emergency or otherwise) and rehabilitative treatment,

as well as the provision of essential drugs.

Psychological treatment should be

understood broadly to include not only trauma counselling but also psychosocial

interventions, as well as emotional support,

including, for example, at critical

times such as notification of death or injury to relatives, identification of bodies or

The 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, para. 14, refers to “necessary”

assistance.

International Covenant on Economic, Social and Cultural Rights 1966, para. 12 (1); 2005 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, para. 20 (a); 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of

Power, para. 14.

UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 14: The right to the highest attainable

standard of health (Art. 12), 11 August 2000, para. 17.

Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the

rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA; UNODC, Handbook

on Justice for Victims: On the Use and Application of the Declaration on Basic Principles of Justice for Victims of Crime and

Abuse of Power (1999), p. 18.

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attendance at interviews.

Medical goods must also be provided,

which, among

other things, can include necessary medical equipment, items and devices, including

quality disability assistance aids, devices and assistive technologies.

Medical care or treatment must not be understood in a narrow clinical sense, but to also

entail more comprehensive measures of

rehabilitation.

Medical rehabilitation means

“the process of medical care aiming at developing the functional and psychological

abilities of the individual, and, if necessary, his compensatory mechanisms, so as to

enable him to attain self-dependence and lead an active life”.

It is often closely related

to measures of social rehabilitation, meaning “the process aimed at the integration or

re-integration of a disabled person into society by helping him to adjust to the demands

of family, community, and occupation, while reducing any economic and social burdens

that may impede the total rehabilitation process”.

In this sense, medical measures

under this provision may be related to measures of social and material assistance

under paragraphs 1(b) and (c). The multidimensional nature of medical and social

rehabilitation will typically require a multidisciplinary response, highlighting the need for

central coordination of assistance overall (addressed in Article 6).

It should be emphasized that, under international human rights law, there are minimum

standards in relation to medical care. In relation to health facilities, goods and services,

accessibility

entails non-discriminatory access; safe physical accessibility for all victims;

economic accessibility (affordability); and information accessibility.

Acceptability

means that health facilities, goods and services must be culturally and gender

appropriate and respectful of medical ethics (including patient confidentiality). Good

quality

requires that health facilities, goods and services be scientifically and medically

appropriate, involving skilled personnel, approved and safe equipment, and safe water

UNODC, ibid.

General Comment No. 14, para 17.

Such as prostheses, hearing aids, spectacles, mobility aids (e.g. wheelchairs), guide dogs, and so on. See e.g. CRPD arts. 20 and

26 (3).

See e.g. 2005 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, para. 21 (“Rehabilitation should

include medical and psychological care as well as legal and social services”).

WHO Expert Committee on Medical Rehabilitation, Second Report, Technical Report Series 419, (Geneva, 1969), p. 6.

WHO Expert Committee on Medical Rehabilitation, second report, Technical Report Series 419, (Geneva, 1969), p. 6. See also

Convention on the Rights of Persons with Disabilities 2006, article 26 (habilitation and rehabilitation); Report of the Special

Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin

Scheinin, “Ten areas of best practices in countering terrorism” (A/HRC/16/51), 2010, para. 25.

Ibid., para. 12 (b).

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and adequate sanitation. Medical treatment must also be provided in a timely manner.

As Article 6 relatedly indicates, the timing of assistance in general (including medical

care) will vary depending on the different phases of a victim’s needs, whether at the

emergency stage or in the short-, medium-, or long-term.

Medical treatment must be appropriately adapted to all groups with special needs,

whether because of the nature of the harm and/or the victim’s membership of a vulnerable

or marginalized group.

These may include (in addition to persons with disabilities,

mentioned above) ethnic minorities and indigenous populations, women, children,

adolescents, older persons, and persons with HIV/AIDS.

Persons with disabilities

are entitled to equal access in health care and should not incur additional costs.

the context of terrorism, members of particular religious groups (whether minority or

otherwise) could also have special needs. Sensitivity to special needs is further related

to the selection and coordination of the appropriate (and suitably qualified) actor(s) for

providing assistance whether through governmental, voluntary, community-based and

indigenous means.

Material Assistance

Regarding material assistance,

paragraph 1(b)(i)

requires assistance to be available for

basic needs,

which are grounded in internationally protected socio-economic rights

(including an adequate standard of living), right to life, and freedom from cruel, inhuman

or degrading treatment. The State must ensure that these are available, whether

provided through, for instance, social security systems, charitable organizations, or

humanitarian relief (particularly in situations of large-scale terrorist violence involving

Ibid., para. 17.

1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, para. 17.

See: 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, para. 17, and CESCR, General

Comment No. 14: The right to the highest attainable standard of health (Art. 12), 11 August 2000, para. 12.

CRPD, art. 35.

See, e.g., 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power; UNODC, The Criminal Justice

Response to Support Victims of Acts of Terrorism (2012), para. 132. General Assembly 73/305 of 28 June 2019 in its preamble

further highlights “the importance of effective coordination among relevant governmental offices and agencies and cooperation

with civil society organizations providing support and assistance to victims and their families”.

See, e.g., UNODC, Handbook on Justice for Victims: On the use and application of the declaration on basic principles of justice for

victims of crime and abuse of power (1999), pp. 17-18; Global Counter-Terrorism Forum (GCTF), Madrid Memorandum on Good

Practices for Assistance to Victims of Terrorism Immediately after the Attack and in Criminal Proceedings (2013), Good Practice

7 (“To the extent possible and depending on available resources, victims can be provided with basic survival benefits including

temporary accommodation, food, and transport. These services foster the normalization process, can reduce victims’ insecurity,

and facilitate victim interaction with law enforcement investigators. Provision of such benefits to victims should not depend on

cooperation with law enforcement investigators”).

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displacement of persons). Regardless of the means by which they are provided, they

must ultimately be available, in order to ensure that the fundamental human rights of

victims of terrorism are fulfilled. In some cases, assistance may be required long-term,

as in the case of internally displaced persons who cannot safely return to their homes

for protracted periods. In lieu of their direct provision, assistance for basic needs could

also be provided through financial assistance.

Paragraph 1(b)(ii)

correlates in part with the human right to work (employment).

The

aim of assistance is to assist a victim to find suitable replacement work where their

prior position cannot be restored (by means of restitution), for instance, due to injury

preventing the same work, or displacement precluding return to work at a particular

place. The provision also encompasses economic notions broader than employment,

namely livelihood or means of subsistence, meaning the means by which households

access the resources necessary to ensure survival.

Livelihoods could be sustained

through, for example, business, agricultural land, or access to resources such as fishing

or forests. Terrorist acts may destroy or impair enjoyment of such opportunities.

Restoration of such rights may be particularly important in certain rural, indigenous, or

minority communities.

Paragraph 1(b)(iii)

focuses on assistance related to property, resources and infrastructure

(which include, but are not limited to, those linked to livelihood or subsistence). These

are understood broadly to include private, community, and general public property; as

well as property held by individuals or on a collective basis. Again, where restitution is

not possible (as where property has been destroyed), assistance involves replacement

or substitution in relation to ownership of property/resources/infrastructure as well

as rights of access to them where they are owned by others (as through formal legal

interests or customary rights (such as to access community or public land, forests, or

waters)). Again, rural, indigenous and minority communities are particularly relevant;

in turn, their livelihood and property/resources interests may be closely connected to

other rights (such as cultural or religious rights (under

paragraph 1(c)(v))

connected

with ancestral land, or the environment (paragraph

1(b)(iv)).

Reference to infrastructure

includes public goods such as roads and essential utilities.

UNODC, Handbook on Justice for Victims: On the Use and Application of the Declaration on Basic Principles of Justice for Victims

of Crime and Abuse of Power (1999), p. 18.

ICESCR, art. 6.

On the right to livelihood see, e.g., Sudan Human Rights Organisation and Centre on Housing Rights and Evictions (COHRE) v,

Sudan, African Commission on Human and Peoples’ Rights Communication No. 279/03–296/05 (27 May 2009).

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Paragraph 1(b)(iv)

concerns repair of the environment.

Terrorist acts which harm

the environment are not “victimless” crimes: a safe, clean, healthy and sustainable

environment is necessary in order to respect, protect and fulfil human rights,

including

basic needs, livelihoods, and indigenous and minority rights. Certain victims of terrorism

will be directly impacted by environmental harms, but the general public is also a wider

victim.

Social Assistance

Paragraph 1(c)

addresses social assistance, including restoration or provision of

educational and training opportunities

(paragraph

1(c)(i))

which may be adversely

impacted by terrorist acts, such as through attacks or violent threats against schools,

teachers, or students; denial of education to girls; abduction, forced recruitment or

enslavement of children; or the closure of schools due to the prevailing insecurity in a

region.

Where restitution is not possible (for instance, the reopening of a school),

restorative measures could include the construction of new schools, or enhanced security

for schools, teachers and students. Replacement measures could further include moving

students to other schools where their school remains unsafe, including through provision

of scholarships or bursaries to fund living expenses away from home; or providing new

vocational training opportunities which accommodate a victim’s newly acquired disability.

Paragraph 1(c)(ii)

facilitates other measures of social rehabilitation of victims. For

example, in some contexts victims of terrorism may be socially stigmatized by the

general community, whether as perceived collaborators with terrorist groups or due to

the perceived shame of experiencing sexual violence. Necessary restorative measures

could include public awareness and education campaigns to sensitize all sectors of the

community (from employers to the media to law enforcement) to the experiences and

needs of victims.

See, e.g., 2005 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, para. 10 (“In cases of substantial harm

to the environment, restitution, if ordered, should include, as far as possible, restoration of the environment, reconstruction of the

infrastructure, replacement of community facilities and reimbursement of the expenses of relocation, whenever such harm results

in the dislocation of a community”).

UN Special Rapporteur on human rights and the environment, John Knox, Framework principles on human rights and the environment

(HRC/37/59), section II, Principle 1.

See, e.g., UN Human Rights Council resolution 34/8 (23 March 2017): Effects of terrorism on the enjoyment of all human rights,

preamble; OHCHR, Report on protection of human rights and fundamental freedoms while countering terrorism (A/HRC/40/28),

10 January 2019, para. 7; UN Secretary-General, Plan of action to prevent violent extremism (A/70/674), 24 December 2015, para.

16; UN Committee on the Elimination of Discrimination against Women, General Recommendation No. 30 (2013) on Women in

conflict prevention, conflict and post-conflict situations, para. 48.

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Paragraph 1(c)(iii)

ensures assistance to protect family and child rights. Measures

could include assistance with child care

(for instance, where a parent or guardian is

recovering from injuries or has ongoing disabilities), the provision of counselling and

support to ensure the functional reintegration of family members (for instance after

abducted children have been freed), or measures to protect children who have been

separated or orphaned. (Measures to trace and reunify separated family members are

separately covered under restitution.)

Paragraph 1(c)(iv)

recognizes that persons with disabilities may require specialized

assistance and support, including long-term care for permanent disabilities.

Assistance to persons with disabilities is not limited to medical treatment and devices

(as under paragraph 1(a)). Particularly relevant measures may include those related to

rehabilitation, living independently and being included in the community, and personal

mobility.

Wider measures across society may be required to ensure accessibility to

the physical environment, transportation, information and communications, and other

facilities and services open to the public.

Paragraph 1(c)(v)

ensures restoration of cultural and religious rights (individual and group)

affected by terrorist acts.

Such assistance could include the repair or reconstruction of

buildings or sites destroyed or damaged by terrorists; the recommencement of activities

banned in areas previously controlled by terrorists; special measures of protection for

minority communities; or wider measures of inter-faith dialogue to repair sectarian

divisions. (Return of objects stolen or trafficked by terrorist groups, or undamaged sites

occupied them, is separately covered by restitution.)

UNODC, Handbook on Justice for Victims: On the use and application of the declaration on basic principles of justice for victims

of crime and abuse of power (1999), p. 17.

See generally Convention on the Rights of Persons with Disabilities, 2006.

Ibid., arts. 26 (rehabilitation refers to measures, including through peer support, to enable persons with disabilities to attain and

maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all

aspects of life), 19 and 20, respectively.

Convention on the Rights of Persons with Disabilities 2006, art. 9.

See, e.g.,

The Prosecutor v Ahmad Al Faqi Al Mahdi,

ICC-01/12-01/15-171, Trial Chamber Judgment and Sentence, 27 September

2016 (conviction for the war crime of intentionally directing attacks against historic monuments and buildings dedicated to religion

(such as mosques and mausoleums) in Timbuktu, Mali; Security Council resolution 2199 (2015) (highlighting that ISIL (Da’esh),

the Al Nusra Front and other groups associated with Al-Qaida generate income from looting and smuggling of cultural heritage

items in Iraq and Syria); see similarly International Commission of Inquiry on the Syrian Arab Republic, report (A/HRC/31/68), 11

February 2016, paras. 138-140.

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Other Assistance

Paragraph 1(d)

covers certain other expenses incurred by victims, including services

relating to being a victim, such as legal

and professional and other support services

(sub-paragraph

(i)).

The latter could include support for applying for assistance (as

well as compensation, insurance, or protection); interventions to ensure the continuity

of the victim’s credit, housing or employment; or reimbursement for time away from

work or childcare responsibilities when a victim is participating in a legal proceeding.

Assistance could also be available for funeral and burial services (sub-paragraph

(ii)).

In addition,

sub-paragraph (iii)

emphasizes that the types of assistance mentioned in

Article 5 are not exhaustive of all possible kinds of assistance; national law should be

responsive to the needs of victims of terrorist acts as they arise or evolve. For example,

it may be necessary for the State to replace important legal documents

destroyed in a

terrorist act, such as identity or travel documents, or property ownership records.

Humanitarian assistance

Paragraph 1(e)

emphasizes the need to ensure humanitarian assistance where

relevant, including but not limited to situations of armed conflict, without discrimination

(including on the basis of perceived affiliation to terrorist groups) and in accordance with

international principles of humanitarian action. This is based on the UN Key Principles for

the Protection, Repatriation, Prosecution, Rehabilitation and Reintegration of Women and

Children with Links to United Nations Listed Terrorist Groups: “Humanitarian assistance

must be provided without discrimination and according to the principles of humanity,

neutrality and impartiality, including to all individuals irrespective of their perceived

status or affiliation”.

See also the WHO summary on Mental health and Psychosocial

Support for Conflict-related Sexual Violence: Principles and Interventions;

and Chapter

XIV of this Law on armed conflict and displacement.

See also 2017 UNODC Model Law on Legal Aid in Criminal Justice Systems.

UNODC,

Handbook on Justice for Victims: On the use and application of the declaration on basic principles of justice for victims of

crime and abuse of power

(1999), pp. 18-19.

Ibid.

UN, Key principles for the protection, repatriation, prosecution, rehabilitation and reintegration of women and children with links to

United Nations listed terrorist groups, p. 5.

WHO, Mental health and psychosocial support for conflict-related sexual violence: principles and interventions, 2012, p. 2. See

also: OHCHR, Nigeria/Boko Haram: “The reintegration of women essential to the path towards lasting peace”, 22 January 2016.

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Paragraphs 2 and 3: Responsibility, coordination, regulation and funding

The Law is not prescriptive about the form in which assistance must be provided.

Paragraph 2

affirms the 1985 Declaration in recognizing that assistance may be

provided by governmental, voluntary, community-based and indigenous means.

Non-governmental providers of assistance could include victims’ associations, other

civil society or non-governmental organizations (such as charities, local community

groups or religious organizations), or private actors (such as employers, insurers or

corporations).

Paragraph 2(a)(i)

emphasizes, however, that whatever means, or combination of means

are used, the State bears ultimate responsibility for ensuring that necessary assistance

is provided, through oversight by the coordination body under Chapter IV. The same

body is also charged with effectively coordinating assistance by different providers.

Given that victims will frequently require multiple types of assistance, involving a variety

of providers,

paragraph 2(a)(ii)

further requires the same coordination body to ensure

that assistance providers are effectively coordinated, to ensure both efficiency and that

all needs are met.

The scope of the duty to “ensure” assistance should be guided by international human

rights law, including on economic, social and cultural rights (ESCRs) relating to health,

an adequate standard of living (food, water, shelter and so on), education, work, and

social security – which are central to this Article. It is not an absolute duty to provide

all necessary assistance to victims. Rather, a State must (1) take steps to progressively

realize ESCRs “to the maximum of its available resources”,

while (2) normally ensuring

that the “minimum core” essential levels of rights are met (such as primary health care,

basic shelter and housing, and basic education),

and (3) immediately applying certain

elements of ESCRs.

1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, para. 14. Assistance is also recommended

by UNODC, The Criminal Justice Response to Support Victims of Acts of Terrorism (2012), para. 302, and Council of Europe,

Guidelines on Protection of Victims of Terrorist Acts (2017), p. 101.

ICESCR, art. 2 (1).

UN Committee on Economic, Social and Cultural Rights, General Comment No. 3: The nature of States Parties’ obligations (article

2, paragraph 1, of the Covenant) (1990), para. 10.

Ibid., para. 5 (including effective remedies, non-discrimination, and arts. 3, 7 (a)(i), 8, 10 (3), 13 (2) (a), (3) and (4) and 15 (3)).

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Where the State itself chooses to directly provide assistance, it may structure that

assistance through procedures designed specifically for victims of terrorism, or channel

it through existing rights, remedies or procedures available to similarly situated persons

or the public at large. The latter could include, for example, assistance available through

universal public health care, universal social security entitlements (such as for sickness,

disability, employment injury, unemployment, widowhood, or family or child assistance;

and provision of, or subsidies for, basic needs such as housing, food, clothing or essential

utilities); access to education and vocational training; legal protections of cultural and

religious activities; measures to protect children and the family; public provision or

remediation of public infrastructure and the environment; or humanitarian relief and

assistance. It is necessary to ensure, however, that any unique needs of victims of

terrorism be recognized and accommodated if other legal frameworks are used. For

example, it may be appropriate to give priority medical treatment to victims of terrorist

acts in certain circumstances,

where doing so is rationally justified and consistent

with medical ethics, non-discrimination, and the non-hierarchization of victims.

Paragraph 2(b)(i)

aims to ensure that providers of assistance are regulated to ensure

compliance with human rights and any minimum quality standards

prescribed under

the Law or any other relevant laws or regulations. Assistance is not an act of grace but

designed to restore fundamental rights. As such, its delivery must be both effective in

achieving that goal and itself be rights-compliant. The State should enact the necessary

regulatory framework to establish quality and performance standards; proactively

enforce those regulations (such as through periodic audits, reporting, and inspections);

and be responsive to complaints made by victims through an effective procedure and

remedies (on which, see also Article 9(4)). Where assistance does not meet minimum

standards, enforceable corrective action, along with sanctions in serious cases, must

be available, whether through administrative, civil (including contractual) or criminal

penalties or remedies.

Whoever provides assistance,

paragraph 2(b)(ii)

emphasizes that the State is responsible

to ensure adequate funding, including by funding non-State services where necessary.

While the State must ensure that assistance is funded, the State is free to choose

ICESCR 1966, art. 9; UN Committee on Economic, Social and Cultural Rights, General Comment No. 19: The right to social security

(Art. 9) (2008).

UNODC, The Criminal Justice Response to Support Victims of Acts of Terrorism (2012), paras. 51, 299.

See, e.g., Global Counterterrorism Forum (GCTF), Madrid Memorandum on Good Practices for Assistance to Victims of Terrorism

Immediately after the Attack and in Criminal Proceedings (2013), Good Practice 3.

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the means by which funding is secured. Funding may be provided through the State

budget,

whether as part of existing social security or healthcare systems, or through

special mechanisms. Possibilities include funding from general revenue, special levies

or taxes (for instance, on certain sectors of the economy), confiscated terrorist assets,

or the proceeds of crime in general. Mandating private insurance is another possibility,

although the State must supplement such schemes where gaps or inequities in insurance

would deprive victims of necessary assistance. International financial assistance could

also be sought to secure funding, whether through international organizations, other

multilateral mechanisms, or bilaterally.

Paragraph 3: Relation to other remedies

Paragraph 3

enables assistance to be proportionally reduced where other chapters of

the Law have already provided a victim with a remedy (such as compensation) or other

support (such as regarding protection or access to justice), whether through judicial

proceedings (criminal or civil) or any administrative process. The paragraph ensures that

scarce resources be allocated with maximum efficiency, by preventing the duplication

or multiplicity of assistance. Where restitution and compensation is sufficient in relation

to some elements of the harm suffered, the Law does not require States to provide

assistance in that area. It may be noted, however, that even if restitution by an offender,

or compensation, is extensive, some measures of assistance not subsumed by these

will usually be required by all victims, such as emergency medical care after an attack.

Any reduction in assistance must also be proportional: assistance must cover the gaps

where other support or remedies are insufficient to fully redress the harm.

It is not desirable for national law to precondition eligibility for assistance on the

exhaustion of judicial or administrative compensation proceedings. The need for

assistance will often be urgent and immediate, whereas criminal, civil or administrative

proceedings, including the investigation of terrorist acts and offenders, are often

protracted. Delay, and the inevitable uncertainty involved in judicial proceedings

especially, can aggravate the harm suffered by victims. The autonomy of victims also

demands that they be allowed a choice, so far as is possible, as to the means by which

they seek remedies for the harm suffered. The right of the State to subsequently recover

the costs of assistance from an offender where possible is provided in Chapter V on

Reparation.

Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering

terrorism, Martin Scheinin, “Ten areas of best practices in countering terrorism” (2010), para. 25.

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Article 9: Availability, accessibility, assessment, and accountability

1. In relation to the timing of assistance to victims, the [competent authorities] shall ensure:

a. Emergency assistance is immediately available during and after a terrorist act;

b. Other assistance is available as soon as possible, taking into account victims’ needs over the

short-, medium- and long-term. Assistance shall be provided for as long as the victims need it

and shall not be terminated based on automatic or absolute time limits;

c. Interim or prioritized assistance is provided to particularly vulnerable victims or those who

require urgent specialized assistance, such as victims of sexual or gender-related violence,

children, the elderly or persons with disabilities, to avoid irreparable harm and mitigate such

harm as soon as possible.

2. The [competent authorities] shall ensure that all assistance is accessible and available, on a non-

discriminatory basis, including to groups with special needs or vulnerabilities. Victims shall be

entitled to be assisted by an interpreter or translator, legal representative and support person

when seeking to access assistance; these shall be provided free of charge where necessary.

3. The [competent authorities or entities] shall assess a victim’s needs for assistance and formulate

and provide measures of assistance in a manner which:

a. Considers individual circumstances, including the personal impacts of terrorism and relevant

intersectional factors, including by being gender-sensitive;

b. Is based on effective consultation with and the informed consent of the victim (unless the victim is

unable to give consent); or, where assistance is provided collectively, involves adequate, informed

prior consultation with and the consent of affected communities and their representatives;

c. Involves inclusive, effective and timely consultation with all relevant stakeholders

(governmental, non-governmental and private);

d. Is comprehensive, multidisciplinary, integrated, coordinated and promotes victim resilience

[including through individual case managers where feasible];

e. Is periodically reviewed to ensure that assistance remains responsive to victims’ needs.

4. A victim is entitled to:

a. Effective review by the [name of court, tribunal or other competent independent and impartial

authority] of any decision by a public authority, or entity exercising public functions, or to deny,

limit, or withdraw assistance under this [Law] [and any implementing rules or regulations];

b. Effective remedies for any breaches of prescribed standards or human rights in the provision

of assistance by any [provider of assistance].

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COMMENTARY

Article 9

ensures that assistance is available and accessible to victims, including

through appropriate processes to assess needs, and that providers of assistance are

accountable to victims.

Paragraph 1: Temporal Availability of Assistance

Both the assistance needs of victims, and the assistance capacities that may be

reasonably expected of states, vary according to the different phases following a terrorist

act.

Paragraph 1(a)

addresses emergency assistance needs during and immediately

after a terrorist act, when victims typically face urgent medical and humanitarian needs,

such as physical and psychological injuries, release of hostages, separation from family

members, loss of income, or loss of housing and other essential needs in situations

of displacement. It recognizes the importance of proactive, “immediately” available

emergency assistance,

which can positively affect victims’ mental health and ability

to cope.

It does not stipulate any a priori definition of what comprises emergency

assistance, which will depend on the nature of the terrorist act, the characteristics of the

victims, and the circumstances as a whole.

The availability of emergency assistance presupposes that the State has taken the

necessary preparatory measures in advance of terrorist acts to ensure that rapid

and adequate emergency response personnel (such as medical, rescue, fire, and law

enforcement) are available, in the light of up-to-date terrorist risk assessments. The

urgency of emergency assistance will affect the standards that may be expected as

to the nature of decision-making and the procedures for providing assistance; later

phases of assistance will have the advantage of time, thus enabling closer attention to

individual needs for assistance and more specific planning for its provision.

See, e.g., Council of Europe Revised Guidelines on victims of terrorist acts (2017) art. III (emergency assistance); Directive (EU)

2017/541, art. 24 (2) (assistance “available for victims of terrorism immediately after a terrorist attack”); UNODC, Good Practices

in Supporting Victims of Terrorism within the Criminal Justice Framework (2015), para. 93; GCTF, Madrid Memorandum on Good

Practices for Assistance to Victims of Terrorism Immediately after the Attack and in Criminal Proceedings (2013), p. 1 (assistance

should be available “from the moment of the attack” and based on a principle of “immediacy—intervening as soon as possible”:

Good Practice 1). Good Practice 7 indicates that “In the acute crisis stage, the State should focus attention on immediate victim

needs and requests, addressing them in an orderly and prompt manner, and avoid burdening victims with elaborate administrative

information that goes beyond what is strictly necessary during the emergency”).

GCTF, Madrid Memorandum on Good Practices for Assistance to Victims of Terrorism Immediately after the Attack and in Criminal

Proceedings (2013), p. 1.

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Once emergency needs have been addressed, other assistance needs must be considered

in subsequent stages, as

paragraph 1(b)

recognizes.

Initial assistance may require

extension (such as where temporary displacement continues) or conversion into more

permanent assistance (for instance, in the case of permanent disability, or permanent

relocation of displaced persons who cannot return home); needs which could not be

addressed in the emergency phase can now be addressed (such as re-establishing

employment or schooling); and other assistance needs may emerge at future points in

time (as where medical complications subsequently arise).

Since assistance often involves both continuing and changing needs over time, it is

essential that assistance is available throughout the life cycle of a victim’s needs, so that

victims are not abandoned after initial assistance is provided. In general, procedures to

proactively ensure the availability of assistance will need to be most intensive in the

emergency and short-term periods after a terrorist act; once a victim has effectively

accessed the assistance system, the system may be less intensive but must remain

responsive to outreach from the victim.

The duration of assistance overall cannot be delimited by rigid time limits in advance but

must be defined by the whole period over which a victim needs assistance.

Particular

components of assistance may, however, be time-limited (for instance, for administrative

or budgetary purposes), as long as renewal is possible upon the expiry of the time limit if

further support is necessary, taking into account the victim’s circumstances (individual

assessment is addressed in Article 9(3)).

Paragraph 1(c)

provides for interim or prioritized assistance to vulnerable victims or

those who require urgent special assistance, as recommended by the Guidance Note of

the Secretary-General addressing Reparations for Conflict-Related Sexual Violence, and

given that more comprehensive redress often “requires time, resources, coordination,

expertise and political will”.

Such support may be necessary for children, the disabled,

See, e.g., General Assembly resolution 72/284 of 26 June 2018, para. 14 (assistance “in the long term”); Council of Europe Revised

Guidelines on victims of terrorist acts (2017), art. V (continuing assistance); Directive (EU) 2017/541, art. 24 (2) (assistance

“for as long as necessary”); ASEAN Regional Forum Workshop on medium- to long-term support for victims of terrorism, 7-8

February 2017, Manila, Philippines;

Supporting Victims of Terrorism,

report of the INVICTM Symposium in Stockholm, 2018, p. 67

(“Continuity of needs and care”).

See e.g. Directive (EU) 2017/541, art. 24 (2) (assistance “for as long as necessary”); General Assembly resolution 72/284 of 26

June 2018, para. 14 (assistance “in the long term”).

Guidance Note of the Secretary-General, Reparations for Conflict-Related Sexual Violence, p. 12 (“make urgent interim reparations

available to respond to the most urgent and immediate harm”).

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the elderly and victims of sexual violence, to mitigate suffering as soon as feasible.

Prioritization and interim measures could include “interim relief payments, fast-tracking…

applications, or providing specific forms of payment for those who are vulnerable (e.g.

an increased amount or a lump sum rather than periodic payments)”,

specialized

health care, counselling and psycho-social support.

These could be administered

through the coordination body or Registry of Victims under this Law.

Paragraph 2: Accessibility of Assistance

Accessible, prompt and effective procedures for accurately assessing a victim’s

assistance needs are essential preconditions for the effectiveness of all ensuing

assistance measures. Accessibility means eliminating barriers to accessing assistance

(such as based on discrimination, language or geography) as well as pro-actively taking

steps to make it easier for victims to locate and engage with assistance services.

For example, accessibility could be enhanced by making assistance:

convenient

access, such as locating services or information at or near the scene of the attack, at a

hospital where victims are being treated, at a central location (such as a hotel, school,

government building, or trauma centre), or using communications technologies (such

as hotlines, websites, social media or text messaging);

simple,

so as not to overburden

traumatized victims; and

unified,

as by identifying a central official contact point.

The

provision ensures in particular that victims receive external technical supports where

necessary to effectively engage with assistance procedures, including an interpreter or

translator, legal representative and support person, including free of charge as needed.

Paragraph 3: Assessment of and Responsiveness to Victim Needs

Paragraph 3(a)

emphasizes the paramount importance of ensuring that needs are

assessed, and assistance is provided, on an individual basis, taking into account all

Second Expert Report, “Reparations for Victims of Rape, Sexual Slavery and Attacks on Healthcare”, Annex 2 to the Registry Transmission

of Appointed Experts’ Reports,

Prosecutor v. Bosco Ntaganda,

3 November 2020, ICC-01/04-02/06-2623-Anx2-Red2, p. 9.

See, for example, the Report and Proposals for the Implementation of Reparations in Sierra Leone, ICTJ (2009); and in Tunisia -

Article 11, Organic Law on Establishing and Organizing Transitional Justice 2013; see also Expert report on reparations for victims

of rape, sexual slavery and attacks on healthcare in

The Prosecutor vs Ntaganda,

p. 9.

For example, in Timor-Leste the CAVR put in place an urgent reparation scheme for those most affected that included victims of

conflict-related sexual violence. See Chega Report, Part 10: Acolhimento (Reception) and Victim Support, 41., see also Guidance

Note of the Secretary-General, Reparations for Conflict-Related Sexual Violence, p. 12.

See GCTF, Madrid Memorandum on Good Practices for Assistance to Victims of Terrorism Immediately after the Attack and in

Criminal Proceedings (2013).

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relevant intersectional factors,

rather than offering undifferentiated assistance to all

victims on a collective or generic basis. Personal factors could include, among others,

age, gender, sexuality, ethnicity, culture, language, religion, political or other opinion,

national or social origin, birth, disability, economic situation or other status. Only

exceptional situations involving mass casualties or mass displacement, coupled with

limited State resources, could temporarily justify providing assistance on a collective

basis, as long as individualized assistance is provided as soon as the crisis phase is past

and further resources have been mobilized.

In particular, assistance must be gender-sensitive. This requires, inter alia, that victims

should not have to cooperate or participate in an investigation or any other procedure

in order to receive assistance, as recognized in international standards such as the

United Nations Protocol on the Provision of Assistance to Victims of Sexual Exploitation

and Abuse,

the Guidance Note of the Secretary General on Reparations for Conflict-

Related Sexual Violence,

and the UNODC Handbook on Gender Dimensions of

Criminal Justice Responses to Terrorism.

100

The same point is reiterated generally in

Article 4 (d) of this Law.

Paragraph 3(b)

relatedly emphasizes that the formulation and implementation of

assistance measures must be done in consultation with, and with the informed consent

of, the victim. Assistance is a right of the victim and cannot be imposed against the

person’s will. Departures from such requirements are only permissible in exceptional

circumstances where informed consent is incapable of being given, as where a person

is unconscious or has suffered mental incapacitation as a result of their injuries.

Paragraph 3(c)

acknowledges that the effectiveness of assistance depends on taking into

account the views and expertise of all relevant stakeholders, whether non-governmental,

private, or governmental. Consultation must be informed, genuine and meaningful,

rather than purely formal or procedural. It must also be timely, so that assistance is

not delayed. The intensity and scope of consultation may vary depending on its timing;

exigency may require consultation to be more limited during the emergency phase

See also GCTF, Madrid Memorandum on Good Practices for Assistance to Victims of Terrorism Immediately after the Attack and

in Criminal Proceedings (2013), Good Practice 7 (“Support services to victims should take into consideration any unique victim

characteristics”).

United Nations Protocol on the Provision of Assistance to Victims of Sexual Exploitation and Abuse, 2019, para. 3.1.

Guidance Note of the Secretary General on Reparations for Conflict-Related Sexual Violence, p. 13.

UNODC Handbook on Gender Dimensions of Criminal Justice Responses to Terrorism, p. 182.

100

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immediately after a terrorist act, but it should expand commensurately as subsequent

phases allow. Consultation is not, however, limited to a focus on specific terrorist acts,

but should also occur prospectively, so that relevant stakeholders participate in advance

planning for assistance in the event of a terrorist act.

Identifying relevant stakeholders will depend on the characteristics of particular victims,

the types of harm involved, and the nature of the assistance measures envisaged.

Where terrorist acts involve gender or child-related harms, the input of expert or

representative women’s or children’s organizations may be required; where indigenous

peoples or minorities are the targets of violence, consultation may be required with their

representatives in accordance with their own representative structures; where mental

health is concerned, expert medical organizations should be involved; where secondary

victimization through publicity is an issue, the media should be consulted; and so on.

Paragraph 3(d)

recognizes that effective assistance must be formulated and

delivered in a comprehensive, multidisciplinary, integrated, and coordinated manner.

Comprehensiveness

means taking into account all harms suffered;

multidisciplinarity

101

ensures the appropriate expertise is harnessed to properly address multidimensional

needs, and

integration

and

coordination

102

ensure all needs are met, duplication is

avoided, and sequencing is optimized; and a focus on victim

resilience

encourages

coping strategies

103

and self-reliance. One means of ensuring these aims is through an

individual case manager with sufficient training and expertise in dealing with victims

of terrorism. Case managers could form part of the coordination body under Chapter

IV, or be located within another competent authority, or in a non-governmental service

(subject to appropriation).

Paragraph 3(e)

ensures, through a requirement of periodic review, that assistance

remain responsive to a victim’s needs over time, such as where known injuries intensify

(or improve), or where new harms emerge (such as the delayed onset of post-traumatic

stress disorder). An individual case manager would be one appropriate mechanism for

periodic review, although mechanisms independent of the case manager (such as the

coordination body, or some other independent competent authority) could also provide

a wider perspective, including as the adequacy of the management of their case by the

101

102

103

Ibid., Good Practice 4. See also Good Practice 7.

Ibid., Good Practice 1.

Ibid., Good Practice 2.

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case manager. If assistance is inadequate for any reason, corrective measures should

be taken.

Paragraph 4: Remedies and Accountability

Since assistance is a right of victims, not a mere charitable or humanitarian act,

paragraph

provides that legal remedies must be available to challenge (a) decisions by public

authorities (including the coordination body or other competent authorities) or entities

exercising public functions to deny, limit or withdraw assistance, where the victim believes

that he or she is legally entitled to assistance; and (b) failure by any service provider to

meet human rights or prescribed quality standards.

Review is not an automatic requirement but must be available at the victim’s request, and

subject to any reasonable procedural requirements. Review must be effective in the sense

of being able to afford binding remedies on the merits, such as by ordering the provision

or reinstatement of assistance or the satisfaction of quality standards. Review must be

conducted by an independent and impartial tribunal or other competent authority and must

guarantee due process (including the right to know the reasons for the adverse decision,

to provide reasons and evidence to contest the decision, to be legally represented, and to

receive reasons for the tribunal’s decision).

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Chapter VI. Right to reparation

Article 10: General provisions

1. The [competent authorities] shall ensure the right of victims of terrorism to full, adequate, effective

and prompt reparation for all harm suffered from terrorism, including where it is not available from

a person or entity responsible for such terrorism. Reparation includes restitution, compensation,

rehabilitation, satisfaction and guarantees of non-repetition.

2. The [competent authorities] shall ensure that reparation is proportional to the gravity of the violation

and the circumstances of the case and, whenever possible, reflects local cultural and customary

practices, unless these are discriminatory, exclusive or deny victims equal access to their rights.

3. The [competent authorities] shall undertake outreach activities, including gender-inclusive

programmes, and communicate with victims and their communities to ensure that reparation has

broad and real significance.

4. The [competent authorities] should inform victims outside their territory or jurisdiction of any

reparation measure available to them, in a language that they understand.

5. The [competent authorities] shall ensure that reparation [awards / measures / programmes] duly

consider the needs of persons and communities similarly affected by conflict or violence but who

do not qualify for reparation as victims of terrorism.

6. The [competent authorities] shall ensure appropriate collective measures of reparation for harm

suffered by groups or communities, such as in relation to collective property, resources, infrastructure,

services, and the environment, in addition to reparation for harm suffered by individual victims.

COMMENTARY

Article 10

sets out general principles relating to the right to an effective remedy in the

form of reparation.

Paragraphs 1 and 2

recognize the general principle that victims of

terrorism shall receive adequate, effective and prompt reparation for the harm suffered,

on an individual or collective basis, including, as appropriate, compensation, restitution,

rehabilitation, satisfaction and guarantees of non-repetition (concepts all defined in the 2005

Basic Principles and Guidelines). Similar types of reparation are recognized regionally.

104

See, e.g., Inter-American Court of Human Rights,

Massacres of El Mozote and Nearby Places v. El Salvador,

judgment of 25 October

2012 (Merits, reparations and costs), para. 305.

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Given that the target of terrorist acts is often the State, “in the absence of identified

perpetrators, or when they are not solvent”, in particular in light of large-scale injuries

and damages, as is often the case in terrorism cases, “it is the responsibility of the

State to repair the damage suffered”.

105

This is aligned with the 1985 Declaration of

Basic Principles of Justice for Victims of Crime and Abuse of Power, which mentions

that third parties should make “fair restitution to their victims”.

106

Nonetheless, “when

compensation is not fully available from the offender or other sources, States should

endeavour to provide financial compensation”.

107

At the international level this is

emphasized by the High Commissioner for Human Rights: “[v]ictims of terrorism and

their families have a right to an effective remedy and full reparation”,

108

a right that is

“enshrined in international human rights law”.

109

The UN Special Rapporteur on human

rights and counter-terrorism similarly encourages States to make reparation for

terrorism committed by non-State actors.

110

The 2005 Basic Principles and Guidelines provide that reparation needs to meet a

minimum standard of being adequate, effective and prompt, and be proportional to the

gravity of the violations and the harm suffered.

111

Reparation must also be “consistent

with international human rights law and international humanitarian law and be without any

discrimination of any kind or on any ground, without exception”.

112

The Nairobi Principles

further set out factors to ensure that reparation in cases of sexual violence is gender-

sensitive and non-discriminatory. These include tailor-made measures “specifically

adapted to their needs, interests and priorities, as defined by them; and that measures

of access to equality (positive discrimination) are required in order to take into account

105

UNODC, The Criminal Justice Response to Support Victims of Acts of Terrorism (2012), para. 93; Special Rapporteur, Framework

principles, para. 53.

Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by General Assembly resolution 40/34

of 29 November 1985, para. 8.

Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by General Assembly resolution 40/34

of 29 November 1985, para. 12.

OHCHR, Terrorism and Human Rights, report of the UN High Commissioner for Human Rights, (A/HCR/45/27), 9 September 2020,

para. 42.

Ibid., para. 43.

Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering

terrorism, Ben Emmerson, Framework principles for securing the human rights of victims of terrorism (A/HRC/20/14), 4 June

2012, pp. 16-18.

UN Basic Principles and Guidelines, para. 15.

UN General Assembly, resolution 60/147 of 16 December 2005, 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, para. 25.

106

107

108

109

110

111

112

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the reasons and consequences of the crimes and violations committed, and in order to

ensure that they are not repeated”.

113

Paragraph 3

addresses the need for reparation to be publicized through outreach

activities, in order to inform victims and the wider community as to their availability and

purposes, including to aid the social reintegration of victims. Consultations with victims

and outreach activities are crucial for ensuring that reparation processes promote

ownership by victims, prevent exclusion or marginalization, and have the intended

impact and are perceived as such.

114

Such consultations and outreach activities should

include gender- and ethnic-inclusive programmes

115

and consider “the legal, cultural,

economic, and other obstacles victims may face in coming forward and expressing

their views”.

116

Paragraph 4

seeks to ensure the effectiveness of reparation for victims of terrorism

who are outside the State’s territory or jurisdiction (for instance, where a victim has

left the State after a terrorist attack), by informing them of any reparation measures

available to them in the state. This measure is related to the jurisdictional scope of

the Law under Article 5(3).

Paragraph 5

addresses the need for reparation to avoid aggravating the injustices

or tensions which were present when the terrorist act took place. This is particularly

relevant in contexts of armed conflict and inter-communal violence. The principle is

reflected in the International Criminal Court’s

Ntaganda Reparations Order

117

and

Lubanga Amended Reparations Order.

118

Efforts may additionally be undertaken to

avoid further stigmatization of or discrimination against victims.

119

The ICC’s

Al Mahdi

Reparations Order

urged reparation to be non-discriminatory and gender and culturally

113

114

115

Nairobi Principles, para. 7.

Ntaganda Reparations Order, ICC-01/04-02/06, para. 47.

Idem. See also Lubanga Amended Reparations Order, ICC-01/04-01/06-3129-AnxA, para. 31; UN Secretary-General, Guidance Note,

ST/SG(02)/R425, p. 10.

Ntaganda Reparations Order, ICC-01/04-02/06, para. 47.

Ibid., para. 44. See also: Lubanga Amended Reparations Order, ICC-01/04-01/06-3129-Anx1, para. 17 referring to Nairobi

Declaration, principle 2 and see infra Principles 1(iv) (Do no harm), 3 (ii) (Proportional, prompt, and adequate reparations) and 3

(iv) (Transformative reparations); Al Mahdi Reparations Order, ICC-01/12-01/15-236, para. 105; CLR2 February 2020 Submissions,

ICC-01/04-02/06-2477-Red-Corr, paras. 16, 23.

Lubanga Amended Reparations Order, ICC-01/04-01/06-3129-Anx1, p. 4, para. 17.

Ntaganda Reparations Order, ICC-01/04-02/06, para. 44 and Lubanga Amended Reparations Order, ICC-01/04-01/06-3129-Anx1, p.

4, para. 17.

116

117

118

119

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sensitive, so as to “not exacerbate – and in fact [to] address[es] – any pre-existing

situation of discrimination preventing equal opportunities to victims”.

120

The ICC has

further suggested that reparation should not distinguish “between persons in valuing

the harm suffered by one person higher than that of his or her neighbor. Reparations

should, to the contrary, be the antithesis to division; they should have a healing and

restorative function.”

121

As such, reconciliation among communities can be one objective

of reparation.

122

This provision also reinforces the same general principle under Article

3 (4)(a) of this Law.

Paragraph 6

addresses the need for collective reparation for collective harms suffered

by communities as a result of terrorism, in addition to that suffered by individuals. Such

right is enshrined in the UN Basic Principles and Guidelines (“persons who individually

collectively

suffered harm” (emphasis added)).

123

Regional human rights mechanisms

have also recognized this obligation, including that collective measures should take into

account the “sociocultural characteristics of the group affected by the violations.”

124

Such measures may include restitution of communal property or restoration of

collective rights, establishment of health centers, development programmes for health

or education, or other relevant collective measures.

120

121

Al Mahdi Reparations Order, ICC-01/12-01/15-236, para. 105, p. 41.

Public Redacted Version of the “Submissions by the Common Legal Representative of the Victims of the Attacks on Reparations”.

CLR2 February 2020 Submissions, ICC-01/04-02/06-2477-Red-Corr, paras. 16, 23.

Public Redacted Version of the “submissions by the common legal representative of the victims of the attacks on reparations”.

CLR2 February 2020 Submissions, ICC-01/04-02/06-2477-Red-Corr, paras. 16, 23.

UN General Assembly resolution 60/147, 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 (A/RES/60/147),

para. 8; UN Committee against Torture, General Comment No. 3 on Article 12, UNCAT, para. 3.

Inter-American Court of Human Rights, Case of the

Plan de Sanchez Massacre v Guatemala,

Judgment (Reparations) of 19

November 2004, para. 90.

122

123

124

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Article 11: Right to rehabilitation

Victims of terrorism have a right to rehabilitation to restore their physical and psychosocial well-being.

The [competent authorities] shall develop a comprehensive rehabilitation programme comprising

medical and psychological care and legal and social services, strategies and plans.

COMMENTARY

Article 11

addresses the right of victims of terrorism to rehabilitation. Rehabilitation for

victims should “aim to restore, as far as possible, their independence, physical, mental,

social and vocational ability, and full inclusion and participation in society.”

125

This article

is based on international standards as reflected in article 14 of the UN Convention

against Torture, the Convention on the Rights of the Child, the International Convention

on the Protection of All Persons from Enforced Disappearances, the Convention on the

Rights of Persons with Disabilities,

126

and the 2005 Basic Principles and Guidelines.

127

This article identifies structural measures States can take to facilitate rehabilitation for

victims of terrorism, along the lines of what is recommended in regards to victims of torture,

where the Committee against Torture recommends the “adoption of a long-term, integrated

approach and [to] ensure that specialist services for victims of torture and ill-treatment are

available, appropriate and readily accessible.”

128

It is also good State practice to support

victims of terrorism through collaborating with relevant civil society organizations, including

in regards to “research and education programmes, and training”.

129

Furthermore, rehabilitation programmes shall be intersectional and multidisciplinary. The

Committee against Torture for instance has underlined that rehabilitation programmes

must be holistic and multi-disciplinary to address different rehabilitative needs of

victims, identifying that rehabilitation programmes may include medical, physical,

and psychological services, re-integrative and social services, community and family-

oriented assistance and services, vocational training, education and other measures.

Specific measures of rehabilitation are also found in Article 8 (the right to assistance).

125

126

127

UN Committee against Torture, General Comment No. 3, para. 11.

Convention on the Rights of Persons with Disabilities, art. 26.

UN General Assembly resolution 60/147, 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, para. 21.

Ibid., para. 13.

UNODC, Good practices in supporting victims of terrorism within the Criminal Justice Framework, 2015, p. 54.

128

129

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Article 12: Reparation procedures

1. Reparation may be provided through:

a. Legal proceedings against a person or entity responsible for terrorism under this Law;

b. Administrative measures provided by the [competent authorities], including the Compensation

Fund under Article 15 and the [coordination body] under Chapter IV of this [Law];

c. Any other effective remedial mechanism which is sensitive to victims of terrorism, such as a

victims of crime scheme, human rights mechanism or transitional justice process.

2. Reparation under paragraphs 1(b) and (c) of this Article shall be available where:

a. There is no responsible person or entity against whom to bring legal proceedings or a claim

through any other effective remedial mechanism; or

b. A responsible person or entity ordered to make reparation, whether by a court or other effective

remedial mechanism, would be unable to do so in whole or in part.

3. Where a responsible person or entity is criminally convicted of terrorism, the [court] may order

that person or entity, in the same or a subsequent proceeding, to provide reparation to the victim.

4. A victim of terrorism has the right to bring civil proceedings in [name of court/tribunal] to claim

reparation from a person or entity legally responsible for the terrorist act. The existence and/or

disposition of criminal proceedings in respect of the same terrorist act shall not impair this right.

[In determining reparation claims in civil proceedings [the court] shall consider the difficulty victims

may face in obtaining evidence in support of their claim, due to the destruction or unavailability of

evidence.]

5. The [court]’s reparation order shall at a minimum:

a. Be directed against and notified to the legally responsible person or entity;

b. Establish the liability of the legally responsible person or entity;

c. Identify the persons or class(es) of persons who are the victims;

d. Specify, and provide reasons for, the types and extent of reparation measures;

e. Identify the modalities for providing reparation and applicable deadlines.

6. The [court] shall provide reasons if it decides not to order reparation.

7. Any party to the legal proceeding has a right to seek review of a decision to award or deny

compensation, before the [appellate court].

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COMMENTARY

Article 12

outlines the mechanisms by which victims of terrorism can receive

reparation. Victims have a right to an effective remedy, as detailed in many international

instruments, including article 8 of the Universal Declaration of Human Rights, article

2 of the International Covenant on Civil and Political Rights, and numerous regional

instruments.

130

The right has both a substantive and a procedural meaning;

131

this article

addresses the procedures.

Paragraphs 1(a) and 1(b)

draw on the UN’s 1985 Declaration

of Basic Principles of Justice for Victims of Crime and Abuse of Power, which state

that “[j]udicial and administrative mechanisms should be established and strengthened

where necessary to enable victims to obtain redress”.

132

Paragraph 1(c)

reflects that,

in addition, other mechanisms may effectively be able to provide reparation. It is also

supported by the UN 2005 Basic Principles and Guidelines, which indicate that victims

of human rights violations should have access to other mechanisms in domestic

law.

133

Non-exhaustive examples could include victims of crime schemes, human rights

mechanisms or transitional justice processes.

Paragraph 2

ensures that victims are able to receive reparation even when no legal

person or entity has been found legally responsible, or if such person or entity is unable

to provide reparation, i.e., is indigent. The 1985 Declaration of Basic Principles of Justice

for Victims of Crime and Abuse of Power provides that States should “endeavour to

provide compensation” when victims would not be able to receive reparation from the

offender or others.

134

The mechanism in paragraph 2 is similar to that in the Rome

Statute, which allows for victims to be paid through the ICC Trust Fund when the

offender is unable to provide reparation.

135

Paragraph 3

specifies that a court may order a legal person or entity convicted of

terrorism to provide reparation to victims. The 1985 Declaration of Basic Principles of

Justice for Victims of Crime and Abuse of Power notes that offenders should “make fair

130

For a more complete list, including treatment of “effective remedy” by regional courts, see Theo van Boven, “Victims’ rights to a

remedy and reparation: The United Nations Principles and Guidelines”, in

Reparations for Victims of Genocide, War Crimes and

Crimes against Humanity,

Ferstman et al., eds. (Netherlands, Brill/Nijhoff, 2009).

Ibid., p. 22.

1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, para. 5.

2005 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, para. 12.

1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, para. 12.

Rome Statute of the International Criminal Court, art. 75.

131

132

133

134

135

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restitution to victims”.

136

This paragraph is flexible enough to operate in both common

law and civil law jurisdictions, which may provide remedies to victims differently, whether

through reparation proceedings connected with a criminal trial, or a separate civil and

criminal proceedings. Paragraph 3 further emphasizes that a criminal proceeding does

not inhibit victims from receiving reparation through separate civil proceedings. Indeed,

victims have a right to bring proceedings for reparation, as supported by both the 1985

Declaration of Basic Principles and the 2005 Basic Principles and Guidelines.

Paragraphs 5, 6 and 7

further facilitate the rights of victims to effective remedy, as

discussed above.

Paragraph 5

enumerates the minimum elements a judicial reparation

order must contain, to ensure its content is clear and specific and to ensure fairness.

Paragraph 6

requires the court to give reasons if it decides not to give an order for

reparations, in order to enable review and satisfy the requirements of an effective

remedy.

Paragraph 7

includes a right to appeal a decision by any party to the legal

proceedings. There is a basis for this right in article 14 (5) of the International Covenant

on Civil and Political Rights, which allows anyone convicted of a crime to appeal for a

review. While paragraph 7 gives the convicted offender ordered to pay reparation the

right to appeal, it also extends the right to the other parties to the trial.

Article 13: Right to restitution

1. Where possible, [the court or competent authority] shall ensure that measures of restitution are

provided to restore a victim to their original situation before they became a victim.

2. Specific measures of restitution may include restoration of:

a. Civil or political rights, such as liberty and security of person, place of residence, identity or

citizenship and family life;

b. Social or economic rights, including work, education, health and social security;

c. Cultural and religious rights (including sites and objects);

d. Property (individual or collective);

e. The environment and public or community infrastructure and facilities.

3. Where the restoration of a victim’s original situation is not possible or desirable, other measures

of reparation and assistance shall be available to remedy as far as possible the harm suffered.

136

1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, para. 5. See also Rome Statute, Art. 75.

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COMMENTARY

Article 13

addresses the right of victims of terrorism to restitution. The United Nations

1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power

recognizes that, in order to remedy the harm suffered as a result of crime, victims of

crime should receive restitution from an offender.

137

Restitution focuses on restoring

the victim to the original situation before the crime occurred, where possible.

138

It can

include, for example, restoration of liberty or other rights, enjoyment of human rights,

identity, family life and citizenship, return to one’s place of residence, restoration of

employment and return of property.

139

Where an offender is unable to provide restitution,

it should be provided by the state where possible on a no-fault basis.

Paragraph 2 (a)

provides for the restoration of civil and political rights (grounded in

the International Covenant on Civil and Political Rights), with non-exhaustive examples

given of such rights commonly affected by terrorism. Measures could include release

of hostages from detention; return of abducted or displaced persons to their homes;

or provision of identity (including birth registration) or citizenship documents where

these have been destroyed as a result of violence. Concerning family rights, measures

could include services for the tracing and reunification of family members separated

by terrorism; or the provision of counselling and support to ensure the functional

reintegration of family members, for instance after abducted children have been freed.

There should also be other measures of social rehabilitation. For example, victims

may be socially stigmatized by the community, whether as perceived collaborators

with terrorists or due to the perceived shame of having experienced sexual violence.

Restorative measures could include public awareness and education campaigns to

sensitize all sectors of the community (from employers to the media to law enforcement)

to the experiences and needs of victims.

Paragraph 2 (b)

addresses restoration of employment, educational and training

opportunities which may be adversely impacted by terrorist acts, such as through

attacks or violent threats against schools, teachers, or students; denial of education

to girls; abduction, forced recruitment or enslavement of children; or the closure of

137

2005 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, paras. 18-19.

Ibid., para. 19.

Ibid.

138

139

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schools due to prevailing insecurity.

140

Restorative measures could include, for example,

the reopening or reconstruction of schools, or enhanced security for schools, teachers

and students.

Paragraph 2 (c)

ensures restoration of cultural and religious rights (individual and group)

affected by terrorist acts.

141

Such assistance could include the return of objects stolen or

trafficked by terrorist groups; the repair or reconstruction of buildings or sites destroyed

or damaged by terrorists; the recommencement of activities banned in areas previously

controlled by terrorists; special measures of protection for minority communities; or

wider measures of inter-faith dialogue to repair sectarian divisions.

Paragraph 2 (d)

provides for the restoration of property, as provided by the 2005 Basic

Principles and Guidelines;

142

property is protected in various ways under international

law.

143

It could include the return of any form of property stolen by terrorists, whether real

or personal, or immovable or movable, tangible or intangible, or individual or communal

(such as buildings or assets (such as livestock) held in common). It could involve the

restoration of property rights and/or possession as relevant, and should include formal

registration or protection of title or ownership.

Paragraph 2 (e)

concerns the restoration of the environment

144

and public or community

infrastructure or facilities. Terrorist acts which harm the environment are not “victimless”

crimes: a safe, clean, healthy and sustainable environment is necessary in order to respect,

140

See, e.g., UN Human Rights Council resolution 34/8 of 23 March 2017: Effects of terrorism on the enjoyment of all human rights,

preamble; OHCHR, report on protection of human rights and fundamental freedoms while countering terrorism (A/HRC/40/28),

10 January 2019, para. 7; UN Secretary-General, Plan of Action to Prevent Violent Extremism (A/70/674), 24 December 2015, para.

16; UN Committee on the Elimination of Discrimination against Women, General Recommendation No. 30 (2013) on Women in

Conflict Prevention, Conflict and Post-conflict Situations, para. 48.

See, e.g.,

The Prosecutor v Ahmad Al Faqi Al Mahdi,

ICC-01/12-01/15-171, Trial Chamber Judgment and Sentence, 27 September

2016 (conviction for the war crime of intentionally directing attacks against historic monuments and buildings dedicated to

religion (such as mosques and mausoleums) in Timbuktu, Mali; and Security Council resolution 2199 (2015) (highlighting that

ISIL (Da’esh), the Al Nusra Front and other groups associated with Al-Qaida generate income from looting and smuggling of

cultural heritage items in Iraq and Syria). See, similarly, International Commission of Inquiry on the Syrian Arab Republic, report (A/

HRC/31/68), 11 February 2016, paras. 138-140.

2005 Basic Principles and Guidelines, para. 19.

UDHR, art. 17; ICERD, art. 5; CEDAW, arts. 15-16; Protocol I to the European Convention on Human Rights, art. 1; and as an aspect

of non-interference with the home under ICCPR, art. 17.

See, e.g., 2005 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, para. 10 (“In cases of substantial harm

to the environment, restitution, if ordered, should include, as far as possible, restoration of the environment, reconstruction of the

infrastructure, replacement of community facilities and reimbursement of the expenses of relocation, whenever such harm results

in the dislocation of a community”).

141

142

143

144

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protect and fulfil human rights,

145

including the fulfilment of basic needs, livelihoods, and

indigenous and minority rights. Certain victims of terrorism will be directly impacted by

environmental harms, but the general public is also a wider victim. Restoration of public

or community infrastructure of facilities (other than cultural or religious property already

addressed in paragraph 2 (c)) could include, for example, the repair or resumption of

disrupted public utilities such as transport, drinking water, sanitation, electricity or

communications.

Paragraph 3

addresses the circumstance where a victim’s prior situation cannot be

restored (whether by the offender or through assistance), for example because their

property has been destroyed; their place of residence remains unsafe due to continuing

conflict; or they have suffered injuries or disabilities of such a nature as to preclude the

resumption of their former employment or livelihood. Indeed, restitution will often not be

possible due to the irreversible consequences of many terrorist acts. In such situations,

the focus of assistance shifts to aid the victim to adjust to their new situation as far as

possible, such as by providing substitutes, replacements, or alternatives for the rights or

interests which were destroyed or rendered inaccessible. Rehabilitation can thus have a

(no-fault) compensatory purpose, whether in non-pecuniary or pecuniary form.

Examples include medical or psychological care or rehabilitation to treat lasting injuries;

assisting a victim with disabilities to acquire a suitable new job or vocational skills where

they can no longer perform their prior role; providing replacement housing where a

person’s house was destroyed, or substitute land where the victim cannot return to their

own land; replacement of destroyed public infrastructure, utilities, or facilities; generation

of new community economic activities where prior means of subsistence have been

destroyed; moving students to other schools where their school remains unsafe, including

through provision of scholarships or bursaries to fund living expenses away from home.

Measures could also involve monetary payments (thus overlapping with compensation,

particularly no-fault compensation provided by the State where the offender is unable to

provide it), such as State or employer provision of a disability or injury pension where a

victim is no longer able to work, or reimbursement of relocation expenses where a victim

is forced to move home. The Law draws no hard distinction between the categories in

such cases, but contains provisions for managing any overlap.

145

UN Special Rapporteur on human rights and the environment, John Knox, Framework Principles on Human Rights and the

Environment (HRC/37/59), 2018, Principle 1.

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Article 14: Right to compensation

1. Victims of terrorism have a right to compensation for any damage arising from terrorism, including:

a. Death, bodily injury, or impairment of physical or mental health;

b. Lost opportunities, including employment, education and social benefits;

c. Impairment of human rights or fundamental freedoms;

d. Material damages, including loss of earnings or earning potential;

e. Non-material damage, including moral injury, emotional distress, or pain and suffering;

Costs of medical, psychological, therapeutic, rehabilitative or disability care, treatment,

services, items or devices, including medicines and disability aids and adjustments;

g. Costs of transportation, temporary childcare, temporary housing or the movement of the

victim to a place of temporary safe residence;

h. Legal fees and other expenses incurred, including costs incurred related to the participation of

the victim in the criminal process;

Funeral expenses;

Any other costs or losses incurred as a direct result of terrorism.

2. The right of victims to claim compensation does not depend on the existence or the outcome of

criminal proceedings.

3. In assessing the amount of compensation to be awarded to a victim, the [court/compensation

fund/other effective mechanism] shall, at a minimum, consider:

a. The nature of the harm suffered;

b. The duration of the harm;

c. The impact of the harm on the victim’s health, life, and family and social relationships;

d. The likelihood of continuing or future damage;

e. The individual circumstances, characteristics and vulnerabilities of the victim.

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COMMENTARY

Article 14

sets out victims’ right to court-ordered compensation. This right is enshrined

in international and regional instruments pertaining to the rights of victims, including

the 2005 Basic Principles and Guidelines, General Comment No. 3 of the UN Committee

against Torture and the equivalent comment of the African Commission on Human and

Peoples’ Rights.

146

While compensation is the most common form of reparation awarded,

it is complex and challenging to determine.

Paragraph 1

outlines a range of material and

non-material damages that compensation should cover to ensure it is adequate to fully

redress the harm suffered by the victim, as also recognized in international and regional

standards.

147

Paragraph 2

underlines that the right to compensation must not depend on the existence

or the outcome of criminal proceedings. This is grounded in international standards, for

instance in the practice of the UN Committee against Torture.

148

Paragraph 3

identifies a range of essential factors courts shall take into consideration

when awarding compensation that is “fair and adequate”, with purely symbolic amounts

of compensation being insufficient.

149

What is adequate depends on the circumstances

of the case and the harm suffered by the victim,

150

and international instruments outline

a range of damages (material and non-material) that should be covered.

151

The guidance

in this paragraph also helps to provide clarity, transparency and facilitate due process in

the enforcement of compensation orders.

152

146

African Commission on Human and Peoples’ Rights, General Comment No. 4: The Right to Redress for Victims of Torture and

Other Cruel, Inhuman or Degrading Punishment or Treatment (Art. 5), 2016.

UN Basic Principles and Guidelines, para. 20; African Commission on Human and Peoples’ Rights, General Comment No. 4:

The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (Art. 5), 2016; UN

Committee against Torture, General Comment No. 3 (2012), Implementation of Article 14 by States Parties (CAT/C/GC/3), 13

December 2012, paras. 9-10.

See for example, UN Committee against Torture, General Comment No. 3 (2012), Implementation of Article 14 by States Parties

(CAT/C/GC/3), 13 December 2012, para. 26 (“a civil proceeding and the victim’s claim for reparation should not be dependent

on the conclusion of a criminal proceeding…. Civil liability should be available independently of criminal proceedings and the

necessary legislation and institutions for such purpose should be in place”).

See for instance UN Human Rights Committee,

Bozize v Central African Republic,

Communication No. 449/1990;

Mjica v Dominican

Republic,

Communication No. 449/1991);

Griffin v Spain,

Communication No. 493/1992.

UN Basic Principles and Guidelines, principle 10.

Ibid., para. 20; see also UN Committee against Torture, General Comment No. 3 (2012), Implementation of Article 14 by States

Parties (CAT/C/GC/3), 13 December 2012, paras. 9-10.

See: Ntaganda Reparations Order, ICC-01/04-02/06, para. 23; Lubanga Judgment on Principles, ICC-01/04-01/06-3129, para. 32;

Katanga Reparations Order, ICC-01/04-01/07-3728, para. 31; Al Mahdi Reparations Order, ICC-01/12-01/15-236, para. 38.

147

148

149

150

151

152

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Article 15: [Creation of a] State compensation fund for victims of terrorism

1. The [competent authorities] shall establish and/or maintain a Compensation Fund for victims of

terrorism. The Fund shall pay compensation, in accordance with Article 14, to victims registered

under Article 7 of this Law.

2. An entitlement under the Compensation Fund shall not affect a victim’s right to bring legal proceedings

to claim compensation, a court’s competence to order it, or the liability of a legally responsible person

or entity to pay it when ordered to do so by a court. Compensation from the Fund:

a. May be proportionally reduced where a responsible person or entity has actually paid

compensation, whether pursuant to a court order or otherwise;

b. May be recovered by the Fund from a legally responsible person or entity where possible.

3. The Fund shall develop (in consultation with victims, victims’ associations and other CSOs), adopt

and publicize regulations specifying the procedures to access the Fund.

4. The [competent authority] shall designate the Administrators of the Fund, who shall raise funds to

sustain the Fund from:

a. Funds allocated under the [relevant fiscal law(s)] or by court orders;

b. Confiscated proceeds of crime under national law;

c. Voluntary payments, grants or gifts, including international assistance;

d. Income, interest or benefits deriving from the Fund’s investments; and

e. Any other source designated by the Administrators.

COMMENTARY

Article 15

addresses State-run compensation schemes.

Paragraph 1

requires the

establishment of a Compensation Fund with the purpose of making compensation

payments to victims of terrorism, as an alternative or supplement to individual judicial

remedies, since compensation may not be recoverable from perpetrators (whether

because they cannot be found or they are indigent).

153

At the international level this is

supported by the UN General Assembly

154

and the

2005 Basic Principles and Guidelines

153

See, for example, OHCHR, Report on the protection of human rights and fundamental freedoms while countering terrorism (A/

HRC/8/13), 2 June 2008, para. 54: “It may also be inappropriate and unfair to condition compensation on victims’ ability to obtain

reparations from perpetrators or their estates. It is preferable for victims of terrorism to have the option to benefit from State-

administered compensation and assistance schemes.”

UN General Assembly resolution 40/34 of 29 November 1985, Declaration of Basic Principles of Justice for Victims of Crime and

Abuse of Power, paras. 12-13 (“[t]he establishment, strengthening and expansion of national funds for compensation to victims

should be encouraged”).

154

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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

155

and

the Updated Set of Principles for the Protection and Promotion of Human Rights

through Action to Combat Impunity

156

(as effective remedies to provide reparation for

mass atrocities). Regionally, the Council of Europe similarly calls on States to consider

creating funds to address the challenges of victims seeking compensation directly from

perpetrator(s) of terrorism.

157

By way of good practice States should ensure that the Fund is a strong, central decision-

making body with sufficient expertise and spending controls, with its performance

monitored and evaluated over time.

158

One example of a fund is the French guarantee

fund for victims of terrorism, which offers victims a full reparation system including

“emergency payments and upfront payments, the subrogation in the victims’ rights to

sue the offender and a single contact point to avoid [victims having] to launch different,

complex and costly procedures and have to deal with different stakeholders”.

159

Paragraph 2

addresses the adherence to the non-pecuniary rights of victims and the

issue that offenders won’t be relieved from their obligation to make reparations to

victims through judicial processes. A victim’s request to be compensated through the

compensation fund must not take away the victims’ right to seek compensation through

judicial means. However, any compensation actually obtained through judicial means

from the perpetrator of the terrorist act might be taken into consideration by the Fund

when considering compensation requests directed by that victim to the Fund.

Paragraph 3

underlines that regulations of the Fund should be developed in consultation

with victims, victims’ associations and other civil society organizations.

Inter alia,

these

should address:

a. The application procedure and associated time frames;

155

2005 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, para. 16 (“States should endeavour to establish

national programmes for reparation and other assistance to victims in the event that the parties liable for the harm suffered are

unable or unwilling to meet their obligations”).

Economic and Social Council, Promotion and protection of human rights, Report of the independent expert to update the Set of

principles to combat impunity, Diane Orentlicher (E/CN.4/2005/102/Add.1), 8 February 2005, Principle 32.

Revised Guidelines of the Committee of Ministers of the Council of Europe on the protection of victims of terrorist 2017, section

VIII (1).

Report of the Special Adviser, J. Milquet, to the President of the European Commission, Jean-Claude Juncker. March 2019, p. 56.

Report of the Special Adviser, J. Milquet, to the President of the European Commission, Jean-Claude Juncker, March 2019, p. 53.

156

157

158

159

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b. Eligibility for compensation;

c. The bases on which compensation is calculated and the amounts payable;

d. The information to be given to victims when deciding whether to accept

payments;

e. Special measures for victims with particular vulnerabilities;

The modalities for the payment of compensation and associated time frames;

g. The procedure for review or appeal of decisions.

Priorities for funding should be determined and published in advance following

consultations with relevant stakeholders; and the application process should be

accessible and user-friendly.

160

The Article does not explicitly address the possible

methods of structuring compensation awards, such as whether on a “lump sum” basis

or structured as regular payments over time as a pension. The appropriate method may

depend on national legal traditions, the needs and preferences of the victim, and the

interest in ensuring that funds are available for the duration of the victims’ needs and

are not prematurely expended.

Paragraph 4

addresses potential sources of income for the Fund, which should be

sufficiently broad and varied to ensure adequate resources for it. A good State practice

has been resourcing Funds through “proceeds derived from assets seized in accordance

with legislative provisions from persons convicted of serious crimes related to terrorism

or legal entities that have been restrained and forfeited, having been found civilly liable

for financing terrorist activities”.

161

Other means could include “levies on life insurance

policies or fines assessed or imposed by the courts when sentencing for criminal

convictions”.

162

160

161

162

Ibid.

UNODC, Good practices in supporting victims of terrorism within the Criminal Justice Framework, 2015, p. 49.

Ibid.

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Article 16: Right to satisfaction

1. The [competent authorities] shall ensure a victim’s right to satisfaction, including the right to truth,

in order to acknowledge the harm done, repair the moral injury suffered, restore the victim’s dignity,

and preserve historical memory. Measures shall include, as relevant:

a. Public (including judicial) recognition of the harm suffered by a victim of terrorism and of the

victim’s name, character and dignity;

b. Commemoration or tribute, such as ceremonies, memorials or monuments;

c. Public acknowledgement of responsibility and apology.

2. The [competent authorities] shall take measures to ensure the right of victims, their families,

and the public to know the truth about the terrorist act(s), including its facts and circumstances,

causes, and the identity of the perpetrator(s). To this end the [competent authorities] shall:

a. Investigate, prosecute and punish those responsible for terrorism;

b. Collect, retain and preserve information or materials, from all sources, which record the truth

of a terrorist act, its victims, and the response of the authorities;

c. Provide victims with all relevant information relating to the act of terrorism and to progress

on legal proceedings where possible, unless victims indicate that they do not wish to receive

such information;

d. Fully and publicly disclose the truth, to the extent that disclosure does not risk causing further

terrorist harm, secondary victimization, or threaten the safety or interests of victims, their

relatives, witnesses, or persons who assisted victims.

3. The [competent authorities] shall take effective measures to prevent the repetition of terrorism,

including as appropriate:

a. Measures to ensure the cessation of continuing terrorism;

b. Addressing conditions conductive to terrorism [including prolonged conflicts, dehumanization of

victims, lack of rule of law, violations of human rights, ethnic, national and religious discrimination,

political exclusion, socio-economic marginalization, and lack of good governance];

c. Preventing, monitoring and resolving social conflicts;

d. Reform of laws, policies, practices and institutions;

e. Promoting the observance of codes of conduct and ethical norms, in particular reflecting

international standards, by relevant public authorities [such as law enforcement, correctional,

media, medical, psychological, social service and military personnel], economic enterprises

and non-governmental organizations;

Education or training of responsible public officials [including law enforcement officials and

military and security forces]; and ensuring that education and training materials at all levels

include and accurately represent terrorism and its impacts on victims and are consistent with

international law standards;

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g. Ensuring that all civilian and military [legal, administrative or disciplinary] proceedings abide

by international standards of due process, fairness and impartiality;

h. Protecting persons in the legal, medical and health-care professions, the media and other

related professions, and human rights defenders;

Building a culture of respect for human rights across government and society.

COMMENTARY

Paragraph 1

provides for the right to satisfaction, a form of reparation which includes

the right to truth, recognition, and remembrance. This article is based on international

and regional standards as enshrined in the UN Basic Principles and Guidelines

163

and as

identified by UN treaty bodies and regional courts as a key principle of victims’ right to

reparation.

164

Measures of satisfaction can be diverse and depend on the circumstances

but should include components of justice for victims such as public acknowledgments of

wrongdoing, truth, and accountability. Measures of satisfaction also have an important

preventative effect through deterrence and the affirmation of the rule of law.

Paragraph 2

concerns the right to truth – of victims, their families and the public – as

enshrined in international instruments such as the Updated Set of Principles to Combat

Impunity

165

and the 2005 Basic Principles and Guidelines,

166

and in the practice of

international, regional and national mechanisms.

167

The UN Commission on Human

Rights has resolved that the right to truth of includes the right to know the “identity of

the perpetrators and the causes, facts and circumstances in which such violations took

place”.

168

It also extends to information about any ensuing investigation and other related

judicial proceedings. Victims are, however, entitled not to receive information if they so

wish. The UN High Commissioner for Human Rights considers the right to truth as non-

derogable right and not subject to limitations.

169

163

2005 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, para. 22; see also African Commission on Human

and Peoples’ Rights, General Comment No. 4, para. 44.

Human Rights Committee, General Comment No. 31, The nature of the general legal obligation on States Parties to the Covenant, 2004,

para. 16; Internal Rules of the Extraordinary Chambers in the Courts of Cambodia (Rev. 9) as revised on 16 January 2015, Rule 23.

Updated Set of Principles to Combat Impunity, Principles 2, 4 and 5.

2005 Basic Principles and Guidelines, Principle 24.

For example, the Sierra Leone Truth and Reconciliation Commission, Witness to truth: Report of the Sierra Leone Truth and

Reconciliation Commission, 2004, Vol. 1, pp. 44-45, para. 77.

UN Commission on Human Rights, resolution 2005/66 on the Right to Truth, 20 April 2005.

OHCHR, Study on the Right to the Truth (E/CN.4/2006/91), 8 February 2006 para. 38 and conclusions.

164

165

166

167

168

169

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On a broader level, the right to truth should be understood to require States to establish

institutions, mechanisms and procedures that are enabled to lead to the revelation of

the truth, in order to contribute to the fight against impunity, deter future terrorism,

reinstate the rule of law and advance reconciliation. In order to arrive at “the truth” of

what happened, regional human rights mechanisms have, for instance, recommended

the establishment of commissions of inquiry to “investigate the causes of the

violence… and bring those responsible for the violations to justice”.

170

The Inter-

American Commission on Human Rights found “the right to know the truth is a collective

right that ensures society has access to information that is essential for the workings

of democratic systems, and it is also a private right for relatives of the victims which

affords a form of compensation”.

171

Paragraph 3

covers victims’ right to guarantees of non-repetition or non-recurrence as

enshrined in international human rights law.

172

This is a crucial component of victims’

right to reparation that aims at giving victims, and society as a whole, the security and

assurance that all is being done to prevent more terrorism from occurring.

173

According

to the UN Human Rights Committee, relevant measures include making “changes in

relevant laws and practices, as well as bringing to justice the perpetrators of human

rights violations”.

174

According to the UN Special Rapporteur on the promotion of truth,

justice, reparation and guarantees of non-recurrence, legal reforms that may be a part

of a broad prevention framework should include the review of emergency, anti-terrorism

and other security-related legislation to verify that is it fully compliant with human

rights standards”.

175

The Special Rapporteur further observes that while countries have

a duty to “guarantee the security of those within their territory”, in many countries “anti-

terrorism legislation becomes an incentive for the violation of various rights”.

176

The

Special Rapporteur identifies a range of measures the competent authorities should

take to prevent and protect against future terrorist acts, in particular identifying the

170

African Commission on Human and Peoples’ Rights,

Zimbabwe Human Rights NGO Forum v Zimbabwe,

Communication 245/02,

Decision.

Report No. 136/99, Case 10.488,

Ignacio Ellacuría et al. (El Salvador),

22 December 1999, para. 244.

2005 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, para. 23.

UN Human Rights Committee, General Comment No. 31, The nature of the general legal obligation on States Parties to the

Covenant, 2004, para. 16.

Ibid.

Report of the UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence (A/72/523),

12 October 2017, para. 35.

Ibid.

171

172

173

174

175

176

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underlying root causes that may have contributed to the commission of the act, and

the corresponding obligation to reform laws and institutional and administrative

practices.

177

Furthermore, the importance of training for relevant security, law enforcement and

judiciary officials in international human rights and international humanitarian law is

underlined, so as to ensure that responses to terrorism include an accurate account of

the act(s) of terrorism that took place. This can help ensure a common understanding

of what happened, any mistakes made in response and any lessons learned. This is

important to ensure compliance with standards, increase the effectiveness of responses

such as investigations and prosecutions and, if done holistically, to help prevent

secondary victimization. The Madrid Memorandum on Good Practices for Assistance to

Victims of Terrorism Immediately after the Attack and in Criminal Proceedings, of 2012,

for example, recommends to “prevent secondary and repeat victimization within the

criminal justice process by providing sensitivity training to judges and other participants

in the criminal justice system.

178

Training is also addressed in Chapter XV of this Law.

Article 17: Mutual legal assistance

1. When facilitating requests for mutual assistance in criminal, civil or administrative matters in

accordance with national and international law, [including in relation to orders for freezing, seizing

or confiscation of assets,] the [competent authorities] shall pay due regard to the status, role and

rights of victims of terrorism.

2. The [name of court] should recognize and enforce valid foreign legal judgments for reparation, in

accordance with a final judicial or administrative decision, from an offender or other responsible

legal person, in accordance with national and international law.

3. When acting on the request made by another State in accordance with this [Law], the [competent

authorities] shall, to the extent permitted by domestic law and if so requested, give priority

consideration to returning any confiscated proceeds of crime or property to the requesting State

so that it can give compensation to the victims of the crime or return such proceeds of crime or

property to their legitimate owners.]

Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering

terrorism, Ben Emmerson, Framework principles for securing the human rights of victims of terrorism (A/HRC/20/14), 4 June

2012, p. 15.

Global Counterterrorism Forum, Madrid Memorandum on Good Practices for Assistance to Victims of Terrorism Immediately after

the Attack and in Criminal Proceedings, 2012, Good Practice 15.

177

178

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COMMENTARY

Mutual legal assistance (MLA) is an important element of the international legal

response to terrorism. The international counter-terrorism conventions require States

parties to provide MLA in relation to convention offences. Security Council resolution

1373 (2001) further requires all States to “[a]fford one another the greatest measure

of assistance in connection with criminal investigations or criminal proceedings

relating to” terrorist acts, including in obtaining evidence.

179

While the focus of MLA

is on criminal suppression, there is growing attention to the needs of victims of

terrorism in such international cooperation.

180

Paragraph 1

requires the competent authorities dealing with an MLA request to duly

take into account the status, role and right of victims in their decision-making about

granting MLA and the manner in which it is provided. The provision is based on

UNODC’s Good Practices in Supporting Victims of Terrorism within the Criminal Justice

Framework (2015).

181

Article 17 does not impose any obligation on the State to provide

MLA, but rather encourages a victim-centric approach where MLA (of whatever scope)

is available under any applicable national and international laws. MLA can evidently

further the interests of victims by ensuring that perpetrators are brought to justice.

182

MLA in criminal matters is understood to refer to investigations, prosecutions and

judicial proceedings in relation to criminal matters, including with respect to the

freezing, seizing and confiscation of proceeds and instrumentalities of crime and

terrorist property.

183

MLA is also possible in civil or administrative legal proceedings

and Article 17 accordingly also applies to these forms of cooperation, given that the

Law also addresses reparation for victims of terrorism through such non-criminal

179

180

181

UN Security Council resolution 1373 (2001), para. 2(f).

UNODC, Good Practices in Supporting Victims of Terrorism within the Criminal Justice Framework (2015), pp. 57-60.

Ibid., p. 60 (“When facilitating international cooperation requests, States should pay due regard to the status, role and rights of

victims of terrorism, including those who are foreign nationals, within the criminal justice framework”).

Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering

terrorism, Ben Emmerson, 2012 Framework principles for securing the human rights of victims of terrorism (A/HRC/20/14), para.

67(b).

UNODC, Model Law on Mutual Assistance in Criminal Matters 2007, section 3 (1); on cooperation on freezing, seizure and

confiscation”, sections 23-26 of the Model Law.

182

183

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processes. Standards and guidance are available on MLA in criminal matters,

184

civil

matters,

185

and administrative matters.

186

MLA can cover taking evidence or statements, effective service of documents, executing

searches and seizures (including freezing of an offender’s assets), examining objects

and sites, providing information, evidentiary items and expert evaluations, providing

original or certified documents, identifying or tracing proceeds of crime, or facilitating

the voluntary appearance of witnesses.

187

MLA is understood not to apply to inquiries

preliminary to the initiation of legal process; in those situations, Article 6(3) of the Law

concerning informal international cooperation more generally could apply (including

through information exchange and administrative and other coordination).

Paragraph 2

ensures that the State recognizes and enforces a final foreign judicial

or administrative decision awarding reparation to a victim, as in criminal, civil or

administrative compensation proceedings against a terrorist offender or group. The

2005 Basic Principles and Guidelines state that: “States shall, with respect to claims

by victims, enforce domestic judgements for reparation against individuals or entities

liable for the harm suffered and endeavour to enforce valid foreign legal judgements

for reparation in accordance with domestic law and international legal obligations. To

that end, States should provide under their domestic laws effective mechanisms for the

enforcement of reparation judgements”.

188

The provision is expansively framed to apply to criminal, civil, and administrative decisions

so as to enable the widest enforcement of victim rights. Decisions are, however, limited

to reparation decisions awarded against an offender or other responsible legal person

(such as an organizational or corporate entity which was complicit in the terrorist

184

United Nations Model Law on Mutual Assistance in Criminal Matters 2007; Revised Manuals on the Model Treaty on Extradition

and the Model Treaty on Mutual Assistance in Criminal Matters; United Nations Model Treaty on Mutual Assistance in Criminal

Matters; and United Convention on Transnational Organized Crime 2000, art. 18.

1965 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters; 1970

Convention on the Taking of Evidence Abroad in Civil or Commercial Matters; Council Regulation (EC) 1348/2000 of 29 May 2000

on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters; and Council Regulation

(EC) 1206/2001 of 29 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or

commercial matters.

1977 European Convention on the Service Abroad of Documents relating to Administrative Matters; 1978 European Convention on

the Obtaining Abroad of Information and Evidence in Administrative Matters.

See, e.g., UNTOC 2000, art. 18(3).

UN General Assembly resolution 60/147 of 16 December 2005, adopting the 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, para. 17.

185

186

187

188

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offence and against whom enforcement of a compensation award is sought in the other

State). Reparation decisions in such cases will normally involve attempts to enforce

compensation judgments against assets in the other State, but could be wider than

compensation in, for instance, enforcing a measure of restitution or satisfaction. The

provision does not cover other measures under the Model Legislative Provisions, such

as no-fault administrative entitlements to assistance or protection where there is no

judicial or administrative finding of responsibility against a person in relation to whom

enforcement action is to be taken. Since State practice on recognition and enforcement

of foreign judgments is variable (including as regards subject matter, jurisdiction,

and exceptions), the provision is subject to the proviso that it be “‘in accordance with

national and international law”. For example, a State may decide not to recognize and

enforce a foreign judgment which involved denial of due process, fraud, is incompatible

with the State’s legal principles or public policy, or is inconsistent with a local judgment.

International guidance may be found in international instruments such as the Hague

Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments

in Civil or Commercial Matters

189

(not yet in force).

Paragraph 3

is based upon the Draft Convention on International Cooperation in the

Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity

and War Crimes (not yet in force).

190

The proposal to utilize confiscated assets for the

benefit of victims is also enshrined in the International Convention for the Suppression

of the Financing of Terrorism of 1999, which provides in Article 8 (4) that States ”shall

consider establishing mechanisms whereby the funds derived from the forfeitures

referred to in this article are utilized to compensate the victims of offences referred to

in article 2(1)(a) or (b), or their families”.

189

Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (not yet in

force).

Draft Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against

Humanity and War Crimes, version of the 20 March 2020, Article 23 (4) (not yet in force).

190

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Chapter VII. Measures to protect the physical and

psychological integrity and privacy of victims of

terrorism

Article 18: Protective measures

1. The [competent authorities, court, or other relevant entity] shall promptly identify any threats

[risks] to the safety, security, psychological integrity and privacy of victims and their families,

and assess individual needs for protection from such threats, taking into account the personal

situation and vulnerabilities of each person; and take effective measures to protect them, in

accordance with this chapter. Threats of violence shall be promptly and effectively investigated,

prosecuted and punished.

2. A victim has the right to request protective measures from the [competent authorities or court]

where the [competent authorities or court] do not initiate them as required under paragraph 1.

3. A victim shall be consulted by the [competent authorities and/or court] in all decisions about

protective measures, including concerning their imposition, maintenance or proposed lifting.

A victim shall be promptly informed of any decision to lift protective measures and thereafter

measures shall not be lifted before a reasonable period has expired. A victim has the right to

seek review of a decision to life protective measures in the [court] before the measures are

lifted and the measures shall not be lifted while proceedings are pending.

4. The [competent authorities] shall assist and protect victims who were associated with terrorist

groups from all sources of ostracism, stigmatization, discrimination or other human rights

violations based on their gender, including on their return to their country of nationality. Such

measures shall include:

a. Assisting in their rescue and voluntary repatriation;

b. Supporting their disengagement, rehabilitation and reintegration, including through adequate

social, psychological and educational measures which are sensitive to gender-specific

traumas.

5. All measures to protect persons under this chapter shall be consistent with the right of a defendant

to a fair trial in accordance with international human rights law.

6. The costs of protective measures shall be borne by the [competent authorities].

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Article 18

recognizes that victims of terrorism and their families, and witnesses

(including informants), may require protection from threats, intimidation or retaliation,

before, during and after judicial, administrative or other proceedings that affect the

interests of victims.

191

Threats are often related to victim or witness cooperation

with law enforcement authorities or their participation in criminal or other legal

proceedings (including preparation or the post-proceeding enforcement stage). Such

threats may also be directed at those involved in assisting victims in such proceedings

or processes (such as legal representatives, support persons, victim associations,

and human rights defenders), or others involved in the administration of justice (such

as judges, prosecutors, and law enforcement personnel). Threats may emanate from

terrorist organizations as well as from their wider group of supporters or sympathizers.

Protective measures may be a prerequisite for the fulfillment of other rights, including

the right to effective remedies, the right to be heard and access to justice.

Paragraph 1

emphazises that State authorities should be proactive, based on their own

sources of information (including the Registry of Victims under Article 7 of this Law), in

identifying threats and vulnerabilities and assessing protection needs, rather than merely

reacting to fears articulated or threats reported by individuals themselves. Protection

needs should also be asssessed on an individual basis, taking into account personal

characteristics and particular vulnerabilities (including, for example, age, gender,

disability, and ethnicity), rather than on an undifferentiated approach which treats all

victims or classes of victims alike. Assessment should occur promptly after a person

becomes a victim of terrorism, taking into account the exigencies of the circumstances,

to ensure that a victim is not left vulnerable to threats in the aftermath of an attack.

Paragraph 1

emphasizes that the State is responsible for providing the specific measures

of effective protection under subsequent articles of this Chapter. The relevant authorities

191

2005 United Nations Basic Principles, Principle 24 (States should “ensure [victims’] safety from intimidation and retaliation, as

well as that of their families and witnesses, before, during and after judicial, administrative, or other proceedings that affect the

interests of victims”); United Nations General Assembly resolution 73/305 of 28 June 2019 on the Enhancement of international

cooperation to assist victims of terrorism; EU Directive 2012/29/EU of 25 October 2012 establishing minimum standards on the

rights, support and protection of victims of crime; Global Counterterrorism Forum, 2012 Madrid Memorandum, Good Practice 9;

Global Counterterrorism Forum, Rabat Memorandum, Good Practice 6; 2017 Revised Guidelines of the Committee of Ministers of

the Council of Europe on the protection of victims of terrorist acts (“States must ensure the protection and security of victims and

take measures, where appropriate, to protect their identity, in particular where they appear as witnesses”); EU Directive 2017/541

on combating terrorism (Member States should ensure “that measures are available to protect victims of terrorism and their

family members”); ICC, Unified Protocol on the practices used to prepare and familiarize witnesses for giving testimony at trial,

Victims and Witnesses Unit, ICC-01/05-01/08-972-Anx 25-10-2010.

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may vary depending on the measure in question. Under Article 19, protective measures

in legal proceedings will require close cooperation between the court, prosecutors, legal

representatives, law enforcement, and non-State service providers. Many of these actors

will also be relevant to protection outside of legal proceedings under Article 20, along

with other relevant public authorities (such as those holding public records) or private

actors such as security/alarm providers.

Paragraph 1

further requires States to promptly and effectively investigate credible

threats of violence against individuals, and where necessary to interdict such threats

and apprehend, prosecute and punish the offenders. Such measures are closely related

to the duty to take preventive measures to protect life under international human

rights law, and are additional to the more specific protective measures articulated

in Articles 19-21. Article 18 as a whole is not, however, limited to protection against

physical violence or threats thereof, but safeguards against any forms of intimidation

or retaliation, including psychological, social or economic.

Paragraph 2

recognizes the right of victims themselves to request protection from the

competent authorities or the court. While the competent authorities must proactively

protect victims under paragraph 1, the further right under paragraph 2 enables victims

to seek protection where, for example, the authorities are not yet aware of the victim

or the threats to them, or where the authorities have failed to adequately fulfil their

obligations under paragraph 1.

Paragraph 3

requires consultation with victims in all decision-making about protection,

not only to ensure the appropriateness, adequacy and effectiveness of measures but

also to respect victims’ dignity and autonomy. It also imposes procedural safeguards on

protection decisions by requiring: (a) victims to be promptly informed of any decision to

lift protection measures; (b) measures not to be lifted before a reasonable period has

elapsed (to allow the victim time to consider whether to challenge the decision and/

or to seek alternative measures to protect themselves); and (c) a right of independent

review with suspensive effect.

Paragraph 4

recognizes that some people apparently associated with terrorist groups

may themselves be victims in need of protection, including family members and victims

of trafficking or sexual and gender-based violence. The UN Key Principles for the

Protection, Repatriation, Prosecution, Rehabilitation and Reintegration of Women and

Children with Links to United Nations Listed Terrorist Groups emphasize that “criminal

responsibility is individual. Nobody should be detained or prosecuted for crimes

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committed by family members. Many women and children come into contact with United

Nations listed terrorist groups through family links and should be treated in accordance

with the principle of the presumption of innocence. It should not be assumed that such

women and children are members of these groups or have carried out acts in support

of such groups, and such a determination should be made on a case-by-case basis”.

192

Consequently, “[t]here must be individual assessment and screening to appropriately

assess each case and determine each person’s affiliation and/or victimhood, while

taking into account age and gender considerations”.

193

See also Chapter XI of this

Law on child victims; Chapter XII on victims of sexual and gender-based violence; and

Chapter XIII on victims of trafficking.

Paragraph 5

affirms that any protective measures must be consistent with the

defendant’s right to a fair trial under international law, whether in criminal, civil or

administrative proceedings, including their right to know and challenge the case against

them; restrictions will not be lightly presumed and should be narrowly construed or

applied.

Paragraph 6

recognizes that, as part of the public administration of justice, the funding

of the protection of victims, witnesses and related actors is a core responsibility of

the State, whether particular protective measures are provided by State authorities or

private actors.

192

UN Key Principles for the Protection, Repatriation, Prosecution, Rehabilitation and Reintegration of Women and Children with Links

to United Nations Listed Terrorist Groups, p. 7.

Ibid., p. 5.

193

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Article 19: Protective measures in relation to legal proceedings

1. Before, during and after any legal proceedings affecting victims, the [court or competent authority]

shall:

a. Identify any threats [risks] to the safety, security, psychological integrity and privacy of victims

and their families, [witnesses and informants and those assisting victims or involved in the

administration of justice], including from any form of intimidation, retaliation or violence, and

assess individual needs for protection from such threats;

b. Take effective measures to protect victims from any threats under paragraph 1(a).

2. The [court or competent authority] may order or provide protective measures in order to:

a. Support the psychological and emotional needs of persons before and during trial, such as

through a support person or trauma counsellor;

b. Avoid secondary victimization by minimizing the need to repeat testimony, such as by

coordination between actors involved in the legal process (including investigating and

prosecutorial authorities, administrative bodies, lawyers, and victim support services);

c. Reduce fear and anxiety by avoiding face-to-face confrontation with a defendant, such as by

the use of a screen, remote testimony (video or audio); sworn written statements in lieu of oral

testimony, or separate waiting areas for victims and defendants;

d. Suppress intimidation of a person by a defendant or their lawyer, such as by regulating the

manner of questioning, imposing measures of restraint on a defendant or other person [and

punishing the intimidation of any person [or other interferences in the administration of justice

affecting victims]];

e. Reduce anxiety, or ensure safety and security, by limiting the exposure of a person to the public,

such as through the use of screens, remote testimony (video or audio), written statements in

lieu of oral testimony, or closed or in camera proceedings which temporarily exclude the public

and/or media;

In exceptional cases, when no other measure is sufficient to protect a person from retaliation,

by concealing their identity, such as through anonymous testimony (including use of screens

or face or voice distortion), use of aliases, and redaction or sealing of documents or records

containing identifying personal information, consistent with any defendant’s right to a fair trial;

g. [The judge or magistrate] shall vigilantly control the manner of questioning of a victim of

sexual or gender-based violence, so as to avoid any harassment or intimidation.

3. Public or media access to (including reporting upon) a legal proceeding may only be restricted

where it is strictly necessary to protect the rights of victims, proportionate to that aim,

accompanied by independent safeguards to ensure the fairness of the trial, and consistent with

a defendant’s right to a fair trial. Judgments in criminal proceedings must be public, subject to

any redactions necessary to protect the rights of victims or witnesses.

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COMMENTARY

Article 19, paragraph 1

recognizes, in the specific context of legal proceedings, the need

for courts or the competent authorities to identity threats and assess protection needs

(sub-paragraph

(a))

and to take effective protection measures (sub-paragraph

(b)).

International standards support the provision of such protection.

194

Paragraph 2

illustratively categorizes common types of threats or risks and itemizes

the corresponding range of protective measures (some of which overlap between the

categories). Many measures relate to matters at court (including avoiding confrontation

with a defendant,

195

such as through separate waiting areas

196

) but others are connected

to the trial but extend beyond it (such as pre-trial psychological support to prepare for

trial, or redaction of court documents, including judgments, to safeguard the identity

and safety of a victim). Measures may be implemented by the court directly or in

cooperation with other actors (such as service providers or competent authorities).

Protective measures must be consistent with a defendant’s right to a fair trial. For

example, anonymous witnesses (under

sub-paragraph (f))

would only be permissible

where (a) strictly necessary to protect the safety of a witness or other person, based on

good evidence, and as a last resort where less restrictive measures would not suffice;

(b) not result in the conviction of the accused “solely or decisively” on the basis of

anonymous evidence; and (c) ensure sufficient steps are taken to safeguard the rights

of the defense and a fair trial.

197

Sub-paragraph (g)

is derived directly from Rule 72 of the

Rules of Procedure and Evidence of the International Criminal Court.

198

Paragraph 3

reaffirms the right under international law of the public and media to access

legal proceedings, including criminal trials, which is also related to the principles of

openness and transparency in the administration of justice. Media access to courts,

and reporting on proceedings, may only be restricted where it is strictly necessary to

protect the rights of victims, and restrictions are proportionate to that aim; it would

194

195

196

See, e.g., UNODC,

The Criminal Justice Response to Support Victims of Acts of Terrorism

(2012), para. 230.

UNODC,

Human Rights and Criminal Justice Responses to Terrorism

(2014), pp. 157-159.

Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on

the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA, art. 19.1, 19.2.

See, e.g.,

Van Mechelen v Netherlands,

Application No. 26668/95, ECtHR Judgment, 23 April 1997; UNODC, Human Rights and

Criminal Justice Responses to Terrorism (2014), section 5.7.4.

ICC, Rules of Procedure and Evidence, Rule 72.

197

198

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seldom, if ever, be justified to exclude the media or the public from all of a criminal trial.

Any restrictions on media access must be consistent with the defendant’s right to a

fair trial. Judgments in criminal proceedings must always be public,

199

subject to any

redactions which are strictly necessary to protect the rights of victims or witnesses.

Article 20: Protective measures outside of legal proceedings

Protective measures outside of legal proceedings may include:

a. Information about security risks and personal protective measures;

b. Monitoring a person’s communications services, with that person’s consent, to identify and

trace threats;

c. Physical protection of a person or their place of residence, work, or education;

d. Non-disclosure of personal identifying information;

e. Change of identity;

Provision of temporary secure accommodation;

g. Change of residence or place of employment or education;

h. Financial support for protective measures.

COMMENTARY

Article 20

non-exhaustively enumerates protective measures outside the court-room,

whether related to or independent of any legal proceedings. They involve measures to

facilitate a person’s self-protection (sub-paragraph

(a));

direct measures of physical

protection (sub-paragraphs

(b)-(c) and (f)-(g));

and related measures to enable

protection (sub-paragraphs

(d)-(e) and (h)),

including to protect information which

could reveal the person’s identity or whereabouts.

The choice of measures will be dictated by the severity and likelihood of the threat

and the need to minimize disruption to the lives of protected persons. The competent

199

ICCPR, art. 14 (1).

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authorities must ensure necessary protection is provided, but the actor responsible for

providing particular measures of protection will vary according to the area, from law

enforcement to other public authorities to non-State service providers.

Physical protection of a person or premises under

sub-paragraph (c)

could entail, for

example, alarms, surveillance or guards, or provision of a telephone security response

number. Non-disclosure of personal identifying information under

sub-paragraph (d)

could include the suppression or redaction of publicly available records. Change of

identity measures under

sub-paragraph (e)

could include change of name, physical

appearance, identity documents, and public records. Financial support under

sub-

paragraph (h)

could include funds to re-establish a new life after change of residence,

work or identity.

Article 21: Protection of privacy

1. Victims of terrorist acts shall be protected by law against arbitrary or unlawful interference in

their privacy, family, home or correspondence, and against unlawful interference with their honour

or reputation. Any interference with privacy must be legally authorized, necessary in pursuit of a

legitimate aim and proportionate to that aim.

2. The [competent authority/service provider] shall:

a. Take effective measures to protect the privacy of a victim at the scene of a terrorist act and in

subsequent investigations, proceedings, and assistance, including by:Take effective measures

to protect victims from any threats under paragraph 1(a).

Conducting interviews with due respect for privacy and shielded from the public and media;

ii. Refraining from publicly disclosing or publishing the name, address or other identifying

information (including images) of a victim;

b. Where feasible:

inform victims in advance of the potential uses of personal information and data collected

from or about them (such as in criminal investigations and proceedings, or for assistance,

protection or reparation purposes) and of the likelihood of such information becoming

public, and

ii. obtain the free, specific and unambiguous consent of a victim to collect personal

information and data from them and to store or use it;

c. Collect, process, store, transfer and use personal information and data about victims in

conformity with national law on data protection and the right to privacy under international

human rights law, including to ensure that:

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information and data is only used for the purposes for which it was collected;

ii. information and data (including medical data) is treated confidentially;

iii. information and data is protected against unauthorized access, modification, disclosure

or deletion;

iv. victims have a right to access and know the content of information and data stored on

them, to rectify inaccurate data, and to rectify or delete unlawfully stored data; and

v. there is effective internal and independent external supervision of all processes relating to

infromation and data.

3. A victim whose privacy or reputation has been violated is entitled to an effective remedy. It is an

offence, punishable by [insert penalty], for any person to unlawfully disclose to another person any

information acquired in the course of their work concerning victims that enables or leads to the

identification of a victim and/or witness.

COMMENTARY

Paragraph 1

reaffirms the victims’ right to privacy and reputation under international

law

200

(whether interference emanates from State authorities or from natural or legal

persons),

201

as well as the test for their limitation. The privacy of victims can usually be

fully guaranteed by State authorities in the course of investigating terrorist incidents,

conducting legal proceedings and providing assistance to victims. Indeed securing the

consent and cooperation of victims will enhance the effectiveness of law enforcement

efforts. As such, it will seldom be necessary for the State to infringe upon the privacy

of victims when pursuing the legitimate aim of criminal investigations. Where there

are good reasons to intrude upon privacy, any interference must be both lawful (that

is, under other State legislation authorizing the grounds or criteria for intrusion and

applicable procedures) and non-arbitrary (that is, reasonable in the circumstances and

in accordance with human rights as a whole),

202

necessary in pursuit of a legitimate aim,

and proportionate to that aim. There could, for example, be circumstances where law

enforcement authorities legitimately believe it is necessary to publicly disclose certain

details about victims without their consent in order to further a terrorist investigation,

where there are no other alternatives; or to conduct secret surveillance on a victim at risk

of terrorist retaliation. Media intrusion on privacy is addressed in Article 22.

200

201

ICCPR, art. 17.

UN Human Rights Committee, General Comment No. 16: Article 17 (Right to Privacy): The right to respect of privacy, family, home

and correspondence, and protection of honour and reputation, 8 April 1988, para. 1.

Ibid., paras. 3-4.

202

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Paragraph 2(a)

emphasizes that measures to ensure privacy in general must be

maintained from the moment a person becomes a victim of a terrorist act through to

all subsequent measures related to their status as victims, including investigations,

proceedings and measures of assistance. It is also intended to encompass both

physical measures to ensure privacy (such as screens, barriers, or restricted areas

at the scene of a terrorist act or in hospitals where victims are treated, to prevent

invasive on-lookers) as well as measures to ensure the privacy of personal data

collected by the authorities (addressed more specifically in subsequent provisions).

Sub-paragraphs (b)

and

(c)

concern privacy, protection and security of victims’

personal data. They are intended to cover personal information or data of all forms,

including personal details, testimony, forensic samples, biometric data, digital

information, images, recordings and so on. They apply regardless of whether the

data is under the control of State authorities or private actors (such as private

medical facilities or forensic laboratories, insurance companies, or private providers

of assistance to victims).

Under

sub-paragraph (b),

where feasible the authorities or other service providers

must inform victims of the intended uses to which their data may be put before

collecting it,

203

and any risks entailed; and obtain the “free, specific, informed and

unambiguous consent”

204

of victims to collect, store or use it; information should

also be provided as to policies on the retention and deletion of data. There may,

however, be exceptional cases where data may be collected where a victim cannot

be informed or consent is incapable of being given, as in an emergency medical

assistance phase after an attack; where a victim is unconscious or severely injured

or impaired; or where data is collected “about” but not directly “from” a person, as in

the lawful exercise of law-enforcement investigative powers.

Sub-paragraph (c)

requires the protection of information in conformity with national

and international standards. The provision explicitly ensures that data must only

be used for declared purposes,

205

unless subsequent specific consent is obtained

from the victim for other uses; and that the principle of confidentiality is respected.

203

204

205

Report of the High Commissioner for Human Rights, “The right to privacy in the digital age” (A/HRC/39/29), 3 August 2018, para. 29.

Ibid.

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Other relevant standards could include adequate security measures to protect

against unauthorized access, disclosure, modification or deletion;

206

the right of

a victim to access and know the data held on them, and to rectify or delete data

that is unlawfully stored;

207

and internal and independent external supervision of

data processing, which could involve measures such as data audits, data breach

notification, privacy impact assessments, and adequate powers and resources to

investigate breaches and impose sanctions.

208

Paragraph 3

affirms the right to an effective remedy under international human

rights law of a victim whose privacy or reputation has been violated, whether by

State authorities or private actors. Such remedies may include internal or external

mechanisms for the supervision of personal data under paragraph 2, but are not

limited to such mechanisms, which may only be mandated to take corrective action

but not issue compensatory remedies. Effective remedies could include judicial

proceedings or other binding procedures capable of fully vindicating and repairing

the injured rights, as well as prosecution of persons responsible for data breaches.

Remedial procedures need not be victim-specific where existing remedial systems

(inculding human rights mechanisms) are sufficient.

Paragraph 3 also establishes penalties for data breaches,

209

where a person

unlawfully discloses information acquired in the course of their work concerning

victims which enables their identification.

206

207

208

209

Ibid.

Ibid, para. 30.

Ibid., paras. 31-32.

See, e.g., UNODC, Model Law on Trafficking in Persons, art. 28.

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Article 22: Relationship between victims and the media

1. The freedom of the media to receive and impart information, including on the impacts of terrorism

on victims, and of the public to receive it, shall be balanced with the rights of victims [and

witnesses], including rights to safety and security, psychological integrity, privacy and reputation, in

accordance with the right to freedom of expression under international law. Restrictions on media

freedoms, or on victim [or witness] rights, are only permitted when authorized by law, necessary in

pursuit of a legitimate aim, and proportionate to that aim.

2. The [competent authority] shall encourage the media to adopt, and effectively implement, their

own regulations to ensure sensitivity towards and respect for the rights of victims [and witnesses],

both when interacting with them and reporting on terrorist incidents. The [competent authorities]

shall recommend that guidelines provide that the media should:

a. Identify as media when engaging with victims [or witnesses] and request consent before

interviewing them, and not harass those who do not wish to engage with the media;

b. Communicate honestly, sensitively and respectfully with victims [and witnesses]; and protect

information given in confidence;

c. Not impede the medical treatment of victims [or witnesses] or the activities of emergency,

rescue, law enforcement or security personnel;

d. Not publish any information likely to endanger the safety of victims [or witnesses];

e. Not publish images of deceased victims, victims being killed or injured, or hostages;

Not publish images of or communications from perpetrators of terrorist acts in a manner

which glorifies them or their conduct;

g. Not publish any information likely to compromise lawful criminal investigations or legal

proceedings (including any judicial orders suppressing the identity of any person or any

evidence, and the presumption of innocence of an accused);

h. Adequately justify any intrusion on victim [or witness] rights, taking into account the public

interest, the vulnerability of the person, the impact on other victims [or witnesses], alternative

means of obtaining and/or reporting the information, and any prior media engagement by a

victim [or witness];

Train media personnel to report sensitively on terrorism and victims of terrorism;

Establish procedures to handle complaints about violations of media guidelines and to provide

effective remedies to victims of violations.

3. The [coordination body] shall ensure that victims [and witnesses] are provided with information and

training about the dealing with the media, including in relation to the implications for themselves

and their families, other victims [and witnesses], criminal investigations and proceedings, and

access to assistance, protection, and reparation. Victims [and witnesses] shall also be assisted by

communications professionals where necessary.

4. The [competent authorities] shall ensure that a victim [or witness] whose rights have been violated

by media intrusion shall be entitled to an effective remedy.

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COMMENTARY

It is well recognized that a free, uncensored and unhindered press or other media is

essential in any society to ensure freedom of opinion and expression and the enjoyment

of other human rights; it “constitutes one of the cornerstones of a democratic

society”.

210

The public also has a corresponding right to receive media output.

211

relation to terrorism, the media has a role in informing the public about terrorist acts,

including the suffering caused and the socio-cultural and political contexts; informed

debate can shape adequate political responses and prevent others from participating

in terrorism.

212

The media also serves an accountability function in exposing the

adequacy or inadequacy of State counter-terrorism measures, whether preventive or

reactive. Excessive restrictions on access to information must also be avoided, and

journalists should not be penalized for their legitimate activities.

213

Paragraph 1

recognizes that neither victim/witness rights nor media freedoms are

absolute and that neither automatically takes priority over the other. Whether one set

of rights may be restricted in favor of the other will depend on a careful asssesment

of the particular context and circumstances, and minimizing restrictions as far as

possible. Media freedoms, as an aspect of freedom of expression, may be restricted

to secure respect of the rights or reputations of others, or to protect national security,

public order (ordre

public)

or public health or morals.

214

Any restrictions must be

authorized by law, necessary and proportionate in pursuit of those legitimate aims.

215

Limitations may, for example, be justified to prevent the dissemination of “fake news”

which blames or incites hostility towards victims.

Because the balancing of victim/witness rights and media freedoms is often highly

context-specific, and in view of the importance of media freedoms to democracy and

the undesirability of State censorship, it is difficult to legislatively prescribe in advance

210

UN Human Rights Committee, General Comment No. 34: Article 19: Freedoms of opinion and expression (CCPR/C/GC/34), 12

September 2011, para. 13.

Ibid., paras. 13 and 22.

Council of Europe Parliamentary Assembly, ‘Media and Terrorism’, Doc. 10557, 20 May 2005, para. 6; see

http://assembly.coe.int/

nw/xml/XRef/X2H-Xref-ViewHTML.asp?FileID=10914.

UN Human Rights Committee, General Comment No. 34, para. 46.

ICCPR, art. 19 (3).

UN Human Rights Committee, General Comment No. 34, paras. 24-36.

211

212

213

214

215

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the circumstances in which media freedoms should be restricted in favor of victims’

rights. For example, while it may normally be desirable to limit publication of images

of deceased or injured victims, on some occasions there may be a public interest in

publication where, for instance, a State denies that anyone was killed or injured, or

disputes the circumstances in which victims were harmed. A more flexible and rights-

sensitive approach is to encourage the media to self-regulate,

216

paragraph 2

provides,

with guidance and training provided by the State authorities. The paragraph suggests

some of the matters which could be fruitfully addressed in media codes, drawing on

good practice standards.

217

Foremost is an injuction to deal transparently with vicitms and witnesses, including by

disclosing their identity as journalists (sub-paragraph

(a))

and not using clandestine

methods or subterfuge,

218

so that individuals know that they are communicating with

journalists and are thus able to make an informed decision about whether to engage with

the media. All engagements must also proceed on the basis of consent.

219

Engagement

must be sensitive and respectful (sub-paragraph

(b)),

220

to take into account the effects

of trauma and avoiding secondary victimization, including by desisting from pursuing

victims or witnesses who do not wish to engage with the media,

221

and maintaining

confidentiality where a person requests it.

222

Other standards for media codes are concerned with not impeding the physical safety

of victims or witnesses (sub-paragraphs

223

whether through physical

obstruction or revealing sensitive law enforcement operational details.

Sub-paragraph

216

217

Council of Europe Parliamentary Assembly, “Media and terrorism”, Doc 10557, 20 May 2005, para. 8 (i).

See, e.g., UNESCO, Terrorism and the Media: A Handbook for Journalists (2017); Comité Supérieur de l’audiovisuel (CSA),

“Précautions relatives à la couverture audiovisuelle d’actes terroristes”, 25 October 2016. See also Independent Press Standards

Organization (U.K.), Editors’ Code of Practice,

https://www.ipso.co.uk/editors-code-of-practice/

(not terrorism-specific, but relevantly

including standards on privacy (Clause 2), harassment (Clause 3), and intrusion into grief of shock (Clause 4), hospitals (Clause

8), and subterfuge (Clause 10). See also Council of Europe Parliamentary Assembly, “Media and terrorism”; Media Council of

Kenya and International Media Support, Handbook on Reporting Terrorism (2016),

https://www.mediasupport.org/wp-content/

uploads/2017/02/Kenya-Media-Council-Guide-on-Reporting-Terror-Oct.-2016-final.pdf

; and Dart Center for Journalism and Trauma,

“Suggested ways news personnel can minimise further harm when working with victims and survivors”,

https://dartcenter.org/sites/

default/files/working_with_victims.pdf.

Independent Press Standards Organization (U.K.), Editors’ Code of Practice, para. 10.

UNESCO,

Terrorism and the Media,

above, p. 51.

See, e.g., Independent Press Standards Organization (U.K.), Editors’ Code of Practice, Clause 4.

Ibid., Clause 3 (journalists must desist from “questioning, telephoning, pursuing or photographing victims or witnesses once

asked to desist; not remain on property when asked to leave” and must not follow people without their consent; and not engage in

intimidation, harassment or persistent pursuit of a victim or witness).

Ibid., para. 14.

See, e.g., UNESCO,

Terrorism and the Media,

above, pp. 72, 74-77 (including mitigation by delayed broadcasts).

218

219

220

221

222

223

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(e)

is concerned with not publishing insensitive or degrading images of victims (which

can also serve to further the aims of perpetrators to terrorize the public.

224

Sub-paragraph

(f)

urges not glorifying or unnecessarily publicizing terrorist conduct or messages,

225

as to avoid secondary victimization (without prejudice to media efforts to report on

terrorist grievances or conditions conductive to terrorism).

Sub-paragraph (g)

aims to ensure the media do not compromise lawful investigative

or judicial processes,

226

such as by contaminating crime scenes, naming confidential

witnesses, or jeopardizing the presumption of innocence – and thus the prospects

for justice for victims; all of this is without prejudice to the media’s right to expose

unlawful law enforcement practices or to critically comment on legal proceedings.

Sub-

paragraph (h)

sets out some of the issues that media should consider when potentially

intruding on victim or witness rights,

227

so as to balance the public interest in journalism

against the right of the individuals concerned.

Sub-paragraph (i)

provides that media organizations should ensure that their personnel

are trained to sensitively report on terrorism and victims,

228

including training in

applicable self-regulatory codes and the risks of secondary victimization through the

media. Media personnel may simply not be aware of the risks or how to mitigate them,

given that terrorist incidents are typically unusual and exceptional, and that the training

of journalists, the internal standards and ethics applied by different organizations, and

financial pressures vary considerably. Training could be provided by media organizations

themselves, or by victims’ associations, other civil society organizations, or relevant

State authorities. The State authorities should also play a role in supporting such training

where relevant, by whomever provided, including through technical or financial inputs,

raising awareness, and public education. Trainings should be centralized, coordinated

and repeated over time.

224

See, e.g., Council of Europe Parliamentary Assembly, “Media and Terrorism”, above, para. 8(v) (“refrain from disseminating

shocking pictures or images of terrorist acts which violate the privacy and human dignity of victims or contribute to the terrorizing

effect of such acts on the public as well as on the victims and their families”).

Ibid., para. 8 (iv) (“avoid contributing to the aims of terrorists by adding to the feeling of public fear which terrorist acts can create

or by offering terrorists a platform of high publicity”).

UNESCO,

Terrorism and the Media,

above, pp. 78, 88-89

See, e.g., Independent Press Standards Organization (U.K.), Editors’ Code of Practice, above, para. 2 (ii).

Ibid, para. 8 (ii); UNODC,

The Criminal Justice Response to Support Victims of Acts of Terrorism

(2012), para. 378.

225

226

227

228

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Sub-paragraph (j)

recognizes that to be effective and meaningful, media self-regulation

should further involve redress procedures for handling and resolving complaints about

media coverage of terrorist incidents and the treatment of victims and witnesses.

Examples include press councils or media ombudspersons, which can provide the moral

sanction of “critical adjudication” and shaming and the publication of retractions or

apologies.

229

Such procedures are linked to the right to an effective remedy under Article

20(3), but are without prejudice to any binding legal remedies, for instance through the

courts or human rights mechanisms.

These are just some of the victim-related matters which could be covered by media self-

regulation. Further possibilities that could be addressed include:

a. Coordination by media entities to reduce competitive demands for interviews

with victims or witnesses;

230

b. Refraining from photographing victims or witnesses in public or private places

where there is a reasonable expectation of privacy;

231

c. Not interviewing hostages;

232

d. A presumption against, or caution in, interviewing terrorist perpetrators;

233

e. Not acting as mediator between terrorist perpetrators and others

234

(such as the

authorities or the employer or family of hostages);

Not paying for interviews with victims or witnesses;

235

and not using material

(such as images, recordings or statements) obtained from a third party (such

as a member of the public) for a fee;

g. Caution in republishing material from private sources such as social media or

“citizen journalists”;

236

229

See, e.g., OSCE,

The Media Self-Regulation Guidebook

(2008), chapter 3, available at

https://www.osce.org/files/f/

documents/1/d/31497.pdf.

Council of Europe Parliamentary Assembly, “Media and terrorism”, above, para. 8 (iii).

Independent Press Standards Organization (UK), Editors’ Code of Practice, above, para. 2 (iii).

UNESCO,

Terrorism and the Media,

above, p. 77.

Ibid., 77, 81-86.

Ibid., 77.

Ibid., 51.

Ibid., 75.

230

231

232

233

234

235

236

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h. Accurately reflecting the views of victims or witnesses in all coverage, including

of legal proceedings;

Being sensitive to choice of words in reporting;

237

and avoiding inflammatory or

sensationalist coverage, and hate speech, which may aggravate social tensions

underlying violence.

238

Paragraph 3

recognizes that many victims will have little or no experience in dealing with the

media and may be thrust into the media spotlight rapidly and unexpectedly at a traumatic

time, while media organizations themselves will typically be under great pressure to “get”

the story, including directly from victims. The State or victims’ associations can mitigate

these challenges by informing victims of the benefits and risks of engaging with the

media

239

and by providing related training, advocacy and support. The aim of the provision

is not to dissuade victims from speaking to the media, but to enable them to make

informed choices. Some victims will be willing to tell their story and may find it cathartic.

Engaging with the media can assist victims to receive recognition and acknowledgement

of their experience. Victims may nonethless wish to avoid or mitigate undesirable risks,

including secondary victimization, exploitation, retaliation from terrorists, society or

State authorities, or to jeopardize criminal investigations or future remedial processes.

State provision of communications professionals may assist victims in managing media

engagement where victims do wish to speak with the media.

240

Paragraph 4

reiterates the right of a victim or witness to effective remedies where the

media has unjustifably interfered with their rights, whether through self-regulatory media

remedial procedures under paragraph 2 or through other methods of recourse, including

the judicial or human rights procedures. Remedies which are particularly apposite to the

media context include cessation of improper reporting, the issuing of corrections or

apologies (as satisfaction), reparation and sanctions. Since self-regulatory remedies

often do not impose sanctions such as fines or provide compensatory financial relief

to victims, the availability of binding remedies (as for violations of legal or human

rights to privacy, or freedom from inhuman or degrading treatment) may be particularly

important to enable such forms of relief, but must be done in a way that does not unduly

stifle freedom of the media.

237

238

Ibid., 52-58.

Council of Europe Parliamentary Assembly, “Media and terrorism”, above, para. 8 (vi) (“avoid aggravating through their news and

comments the societal tensions underlying terrorism, and in particular to refrain from disseminating hate speech”).

UNODC,

Good Practices in Supporting Victims of Terrorism within the Criminal Justice Framework

(2015), p. 40.

UNODC,

Good Practices in Supporting Victims of Terrorism within the Criminal Justice Framework

(2015), p. 40.

239

240

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Chapter VIII. Right to information

Article 23: Right to information

1. The [coordination body] shall ensure that victims are informed about the factual situation; about

their rights under this Law to assistance, reparation, protection, and access to justice and how,

where and when these rights can be exercised; and about other relevant matters. Such information

should be:

a. Provided from the immediate aftermath of a terrorist attack to the long term, and at regular,

frequent intervals;

b. Accessible, in a format and language which ensures the victim understands and take into

account the intersectional characteristics of the victim. When necessary, victims shall be

entitled to be assisted by an interpreter, legal representative and support person when being

informed; these shall be provided free of charge where necessary;

c. Accurate, impartial, relevant and effective, to enable victims to access their rights;

d. Victim-oriented and delivered in an empathetic manner which is responsive to victims’

emotions.

2. To facilitate and coordinate the right to information, [the coordination body] shall:

a. Effectively engage with victims, victim support services, victims’ associations, other civil

society organizations, and relevant government authorities;

b. Appoint [a family liaison officer or equivalent mechanism] to provide immediate and regular

information to the immediate family and dependents of the direct victim and deal with any

concerns the family may have about their safety and protection for as long as is necessary.

3. All competent authorities holding information about terrorist acts shall provide adequate and

timely information to the public about the terrorist act, including by establishing open, accessible

internal systems to ensure the public’s right to request and receive information. Requests for

information should be granted unless the information is subject to necessary exemptions

prescribed by law. Non-disclosure decisions shall be subject to independent [judicial] review.

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COMMENTARY

Article 23

recognizes the right of victims to information, as reflected in the 2005 Basic

Principles and Guidelines: “States should develop means of informing… victims… of

the[ir] rights and remedies… and of all available legal, medical, psychological, social,

administrative and all other services to which victims may have a right of access”.

241

They should also be informed of the causes.

242

At the regional level it is supported by

Article 4 of the European Parliaments Directive 2012/29/EU entitled “right to receive

information from the first contact with a competent authority”,

243

and article IV of the

Council of Europe’s 3 Revised Guidelines of the Committee of Ministers on the protection

of victims of terrorist acts.

244

Paragraph 1

tasks the [coordination body] (under Chapter IV of this Law) with

responsibility for ensuring the right to information of victims. Victims of terrorism can

be provided with a range of information about: (i) the facts and circumstances of the

attack; (ii) the condition of family members who are victims; (iii) how to deal with the

trauma of the attack (including psychoeducation on normal reactions and practical

suggestions to encourage healthy behaviour and coping mechanisms); (iv) their rights

to assistance, reparation (including long term commemorative measures), truth and

justice, protection, and access to justice, and how, where and when to access them; (v)

any legal or administrative proceedings, including their participation and rights therein;

and (vi) how to interact with the media. The general right to information in Article 23 is

additional to more specific right to information in other Chapters of this Law.

Paragraph 1(a)

provides that information should be available at all relevant times, from

the immediate aftermath of an attack to the long term and at regular intervals in between.

Paragraph 1(b) recognizes

that different groups have different needs for information

and that information should be accessible to all and not be offered in a one-size-fits-all

approach. Special attention shall be given to developing appropriate information for

children and other people with additional vulnerabilities. Accessibility measures include

the use of appropriate and diverse communications media, translation/interpretation,

241

242

243

2005 Basic Principles and Guidelines, para. 24.

Ibid.

Directive 2012/29/EU of the European Parliament and the Council of 25 October 2012 establishing minimum standards on the

rights, support and protection of victims of crime, art. 6, p. 67.

Council of Europe, Revised Guidelines of the Committee of Ministers on the protection of victims of terrorist acts, 19 May 2017,

art. IV.

244

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disability-sensitive communication techniques, legal assistance or support persons

(free where necessary), and outreach to geographically remote areas or communities.

Paragraph 1(c)

emphasizes that care must be taken to ensure information is accurate,

impartial, relevant and effective, rather than being (for example) too general, hastily

prepared with errors, out of date or politicized. Information must also be victim-sensitive,

both as regards is content and manner of delivery, to avoid secondary victimization

(paragraph

1(d)).

Paragraph 2 (a)

addresses the coordination of information, which is vital to avoid the

risk of overwhelming victims or providing them with contradictory information, and

hence avoid secondary victimization. “One-stop shops” and centralized websites are

good practices, as recommended by the EU

Handbook for Victims of Terrorism:

“it is

recommended that victims of terrorism [be] supported with a centralized, single contact

point that coordinates the work of all those involved in the support and protection of

victims. Additionally, a dedicated website, providing all relevant information, can act

as – or be supported by – a one-stop-shop, a center where a range of services (e.g.,

psychological, legal, medical and financial) is provided in the immediate aftermath of

an attack”.

245

Paragraph 2(b)

recognizes that, since victims include immediate family

members (see Definitions in Chapter II of this Law), a family liaison officer or equivalent

mechanism should be appointed to provide information to immediate family members

and dependents.

Paragraph 3

addresses the need to provide information to the wider public, which is

likely to be concerned or anxious about the attack and interested in its consequences

for victims and accountability. This is a fundamental component of the right to freedom

of expression enshrined in Article 19 of the International Covenant on Civil and Political

Rights, namely the right of individuals “to seek, receive and impart information and

ideas through any media and regardless of frontiers”.

246

Care should be taken when

informing the wider population, to ensure that the risk of traumatizing third persons

is reduced. The right includes access to information held by public bodies, regardless

of the form in which the information is stored, its source and the date of production.

The UN Human Rights Committee in its General Comment No. 34 has specified that

States should proactively publish information of public interest and take steps to

245

246

Handbook on Victims of Terrorism,

2021, p. 11.

ICCPR, art. 19; see also UDHR, art. 19.

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facilitate access to information held by public bodies. Public bodies have an obligation

to disclose information and every member of the public has a corresponding right to

receive information. The right to information is subject to exemptions prescribed by

law, however non-disclosure decisions shall be subject to independent [judicial] review

based on internationally recognized standards.

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Chapter IX. Access to justice

Article 24: Access to justice

Procedures for providing justice and accountability to victims under [the Law] shall be accessible, fair

and expeditious. In particular:

1. The [police/prosecutor/court] shall receive and effectively investigate any report or complaint by

a person that they are a victim of terrorism.

2. The [competent authority] shall promptly provide a victim with free and accessible information

on the legal aspects of being a victim, including involvement in the criminal justice process, the

possibility of claiming compensation through a civil action or administrative proceeding, and

rights to assistance and protection.

3. In any legal proceeding affecting them as a victim:

a. The [competent authority or court] shall:

Inform the victim of any such proceeding; their role in, and the scope, timing and progress

of such proceedings; and of the disposition of those cases;

ii. Inform the victim of their rights to legal assistance, advice and representation, including

through legal aid services, and of how to access such rights;

b. The victim shall have the right to represent themself in person or to be represented through

legal counsel of their own choosing;

c. The [competent authority or court] shall ensure that effective legal assistance, advice and

representation is provided whenever a victim has limited means to pay for it or if the interests

of justice so require;

d. The victim, whether a party to the proceedings or not, shall have the right to attend and

witness the proceedings in person or remotely. The [court or competent authority] shall take

the necessary measures to accommodate the attendance of victims, such as by selecting a

courtroom of adequate size, providing live video and audio feeds to a remote courtroom(s),

the public television or radio broadcasting of proceedings, and translation. All measures shall

be consistent with the rights of parties, witnesses and victims, and the interest of justice;

e. Where public broadcasting is not available, [the court] shall ensure that victims wishing to

participate in or attend a proceeding can do so by:

Conducting the proceeding in multiple courtrooms connected by audio-visual

communications technology, on the motion of victims or at the request of a party, and with

the consent of all the parties; and/or

ii. Transmitting an audio-visual recording of the proceeding at a location(s) outside the

court which is accessible to victims, with a [number]-minute delay, as appropriate. Such

locations could be elsewhere in the [name of State] or abroad; while guaranteeing the

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Model Legislative Provisions

TO SUPPORT THE NEEDS AND PROTECT THE RIGHTS OF VICTIMS OF TERRORISM

confidentiality of the transmission or recording;

An audio or audio-visual recording of the proceeding shall [should/may] be created for

historical and archival purposes. The entire trial should be recorded, provided that doing so

does not affect the trial procedure or the rights of the defendant(s) or victims. The [court] may

order that the recording be freely reproduced and broadcast without delay, once all appeals

have been exhausted and judgment (including sentencing) is final. Otherwise, after [number

of] years the recording shall be made freely available for reproduction and broadcast.

g. The right to a fair hearing before a competent, independent and impartial tribunal, in accordance

with international law, shall be guaranteed.

4. The [prosecuting authorities] shall ensure, in accordance with criminal procedure law, that:

a. Investigations are gender-responsive, take into account the full scope of the crimes, including

their gender-related harms;

b. Charges brought against terrorist suspects reflect the full extent of their crimes, including

sexual and gender-based violence; and

c. The status of a person as a victim is recognized where the person is also suspected of

participation in terrorism.

5. Where a legal proceeding affects a victim, the [competent authority] shall coordinate a

comprehensive assessment of victim’s legal, psychological, social, emotional, physical and

cognitive situation and needs. Legal-aid providers and other professionals assisting victims

(such as social workers, health providers, and civil society organizations) shall participate in such

assessment and closely cooperate with one another and the [competent authority].

6. In ensuring that victims of terrorism receive access to justice under this [Law], the [competent

authorities] shall grant residence status to victims where necessary, such as by issuing a temporary

residence permit for a period of at least [six months], with the possibility of renewal.

7. Undue delay shall be avoided in the disposition of cases and enforcement of decisions.

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COMMENTARY

The

chapeau

to Article 24 sets out the general principles that justice and redress for

victims under the Law should be accessible, affordable, fair and expeditious.

247

Article

24 is intended to apply not only to formal judicial proceedings under the Law (such as

criminal and civil cases) but also to other legal and administrative procedures (including

non-adversarial ones) which affect their legal rights as victims, whether statutory

compensation schemes or the right to assistance. Access to justice necessarily also

involves issues of due process, the absence or deficiency of which can adversely

affect accessibility. The following seven paragraphs of Article 24 particularize the key

elements of the general principles. It should be emphasized that all victims of violations

of international law and of crime are entitled to access to justice, whether they are

victims of terrorism or of excessive counter-terrorism measures by State authorities.

Paragraph 1: Duty to Investigate.

A vital precondition of access to justice is that the

authorities be responsive to a person who claims to be a victim of terrorism, enabling

the machinery of justice to commence. Paragraph 1 thus provides that the authorities

shall receive and effectively investigate any report or complaint by a person that they are

a victim of terrorism. While the authorities themselves will often initiate an investigation

even in the absence of complaints by victims, the provision is important in cases where

the authorities may be unaware of a terrorist act, or have not initiated an investigation

on their own. Investigation is also an essential element of the right to reparation.

Paragraph 2: Right to Legal Information.

Many victims of terrorism will be unfamiliar with

the legal system, including their rights as victims, the range of legal proceedings or other

procedures which may affect them, and the procedures for vindicating their rights. The

trauma of being a victim may also be disorienting when seeking to understand and access

legal redress.

Paragraph 2

accordingly provides that, even before any legal proceedings

have commenced, the competent authority shall provide victims with free and accessible

basic legal information on possible legal proceedings and other procedures, including

criminal justice and civil proceedings, other compensation mechanisms (such as

247

1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, para. 4 (victims “are entitled to access

to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered”)

and para. 5 (“Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims

to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible”).

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administrative or statutory processes), as well as rights to assistance and protection.

248

(Legal representation and legal aid in relation to legal proceedings are separately

addressed in paragraph 3.)

Such information must be provided “promptly”, meaning as soon as possible after the

person becomes a victim, which will usually be soon after the emergency response phase

has passed. Article 24 does not require the provision of a legal representative within a

privileged lawyer-client confidentiality relationship. Rather, a competent authority which

could provide basic legal information could include designated State authorities (such as

police or other front line responders,

249

or a central authority for the protection of victims),

victim services agencies or non-governmental organizations.

250

The information must

be accessible and could be provided in the form of written information documents,

telephone advice services, on radio, television or the internet, or in face-to-face briefings;

and should be provided in a language that victims understand. The provision is intended

to apprise victims of basic legal rights, to serve as a springboard for more detailed

legal advice, which may be later sought by a victim in connection with any specific

legal proceedings. Whoever provides the information, the State remains responsible for

ensuring the promptness and sufficiency of the information. The provisions here are

closely related to Chapter VIII on Information and Chapter IV on Coordination.

Paragraph 3: Rights to Self-representation, Legal Representation, and Legal Aid.

International human rights law recognizes the right of a defendant in criminal

proceedings to defend themselves in person or through legal counsel of their own

248

See, e.g., 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, para. 5 (“Victims should

be informed of their rights in seeking redress through such mechanisms”); 2012 United Nations Principles and Guidelines on

Access to Legal Aid in Criminal Justice Systems, Guideline 2, para. 48(c) (‘Victims receive legal advice on any aspect of their

involvement in the criminal justice process, including the possibility of taking civil action or making a claim for compensation

in separate legal proceedings, whichever is consistent with the relevant national legislation’) and 48 (d) (“Victims are promptly

informed by the police and other front line responders (i.e., health, social and child welfare providers) of their right to information

and their entitlement to legal aid, assistance and protection and of how to access such right”); Directive (EU) 2017/541 of the

European Parliament and of the Council of 15 March 2017 on combatting terrorism and replacing Council Framework Decision

2002/475/JHA and amending Council Decision 2005/671/JHA, article 24(3)(b) (“provision of advice and information on any

relevant legal… matters”); Council of Europe Revised Guidelines on the protection of victims of terrorism (2017), section IV, para. 2

(States should (a) “set up appropriate information contact points for the victims, concerning in particular their rights, the existence

of support bodies, and the possibility of obtaining assistance, practical and legal advice as well as redress or compensation”,

and (b) “ensure that victims are provided with appropriate information in particular about the investigations, the final decision

concerning prosecution, the date and place of the hearings, any opportunity in that context to introduce an action for damages,

and the conditions under which they may acquaint themselves with the decisions handed down”).

2012 United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, Guideline 2, para. 48 (d)

(“Victims are promptly informed by the police and other front line responders (i.e., health, social and child welfare providers) of

their right to information and their entitlement to legal aid, assistance and protection and of how to access such right”).

2012 United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, Guideline 2, para. 48(f) (“Victim

services agencies and non-governmental organizations provide legal aid to victims”).

249

250

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choosing and to be informed of this right;

251

and to have legal assistance (representation

by a legally qualified person) assigned whenever the interests of justice so require,

and without payment by them (legal aid) if they do not have sufficient means to pay.

252

Human rights law further recognizes that legal assistance in civil proceedings may be

necessary to ensure a fair trial, to enable access to the courts or effective participation

in proceedings.

253

Paragraph 3

recognizes that it is good practice to extend such

rights to all victims (and witnesses) of crimes,

254

whether in criminal or any other legal

proceedings affecting their interests, so as to ensure their fullest access to justice.

Sub-paragraph 3 (a)(i)

ensures that victims are made aware of the existence and nature

of any specific proceedings affecting them, through a right to be informed of their role

in and the scope, timing and progress of the proceedings and of the disposition of

their cases.

255

It concerns information about specific proceedings rather than the more

general legal advice about the range of potential legal processes under Article 24 (2)

(before any proceedings have been initiated).

Sub-paragraph 3 (a)(ii)

more specifically

requires victims to be informed of their rights to legal representation and legal aid

in connection with any legal proceedings.

256

The right to be informed is essential for

the effectiveness of a victim’s other rights to choose whether to be self-represented,

represented through legal counsel, or to obtain legal aid, under Article 24 (3)(b)-(c).

Information about the disposition of their cases will be especially important where

a victim has chosen not to participate in a proceeding but the outcome nonetheless

affects their interests (whether morally or materially).

251

252

253

254

ICCPR, article 14 (d)(1).

ICCPR, article 14 (d)(2). See also General Comment No. 32, para. 38.

UN Human Rights Committee, General Comment No. 32, para. 10.

1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, para. 6 (c) (‘Providing proper assistance

to victims throughout the legal process’); United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice

Systems (2021), Principle 4 (legal aid to all victims of crime). See also UNODC, Good Practices in Supporting Victims of Terrorism

within the Criminal Justice Framework (2015), p. 39; Report of the Special Rapporteur on the promotion and protection of human

rights and fundamental freedoms while countering terrorism, Martin Scheinin (A/HRC/16/51), 2010, para. 24. On regional

approaches see, e.g., Council of Europe Revised Guidelines on the protection of victims of terrorism (2017), section VII (”States

must provide effective access to the law and to justice for victims by providing the right of access to competent courts in order

to bring a civil action in support of their rights, including legal assistance and interpretation as required to this end”); Directive

2012/29/EU of the European Parliament and of the Council (25 October 2012) establishing minimum standards on the rights,

support and protection of victims of crime, article 13 (“Member States shall ensure that victims have access to legal aid, where

they have the status of parties to criminal proceedings. The conditions or procedural rules under which victims have access to

legal aid shall be determined by national law”); Directive (EU) 2017/541 of the European Parliament and of the Council of 15

March 2017 on combatting terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision

2005/671/JHA, art. 24 (6) (“ensure that victims of terrorism have access to legal aid in accordance with Article 13 of Directive

2012/29/EU, where they have the status of parties to criminal proceedings”).

1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, para. 6 (a).

2012 United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, Guideline 2, para. 48 (d). See

also ICCPR, art. 14 (d) (1) (concerning defendants in criminal proceedings).

255

256

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Sub-paragraph 3 (b)

acknowledges the agency of victims in choosing whether to

represent themselves (including by testifying) or to be represented through a lawyer;

and to choose a preferred lawyer. The choice of a private lawyer enables victims to

select representatives whom they are comfortable briefing and being represented by,

and who have appropriate expertise in the relevant legal matters (albeit within the limits

of affordability). It is implicit that persons assisted through a lawyer have the right

to instruct their lawyer on the conduct of their case, within the limits of professional

responsibility,

257

and without obstruction by the authorities.

Sub-paragraph 3 (c)

recognizes the right to free legal aid where a victim lacks the capacity

to pay for legal assistance, advice and representation (such as based on the application

of a “means test”), or where the interests of justice otherwise require, and where the

proceedings concern victim interests (such as reparation or the establishment of the truth

about a terrorist act). Legal aid can relevantly encompass the provision of legal advice,

assistance, information, representation and advocacy.

258

Where legal representation is

provided by the State, it must be effective in the sense of being free from misbehaviour

or incompetence;

259

judges must safeguard against such risks. The courts and the

authorities must also refrain from hindering appointed lawyers from effectively fulfilling

their tasks.

260

Legal aid can also, however, take the form of State subsidies to private

lawyers chosen by the victim; it is not necessarily tied to direct selection and provision

of a lawyer by the State. In all cases, access to legal aid must be non-discriminatory;

an appropriate remedy must be available where access to it is denied, undermined or

delayed; communications and consultations with legal aid providers must be subject to

a right of confidentiality; legal aid beneficiaries should be exempt from court costs; and

legal-aid providers must treat victims with respect for their human rights and dignity.

261

Sub-paragraph 3 (d)

acknowledges the importance to victims (whether parties or not) of

having a right to attend and witness legal proceedings affecting them (whether a criminal

trial, civil proceedings, or other relevant proceedings such as coroners’ inquests), in

order that they may see justice being done, maintain confidence in the administration

257

UN Human Rights Committee, General Comment No. 32: Article 14, Right to equality before courts and tribunals and to fair trial

(2007), para. 38.

2017 UNODC Model Law on Legal Aid in Criminal Justice Systems, art. 11.1.

Ibid., para. 38.

UN Human Rights Committee, General Comment No. 32: Article 14, Right to equality before courts and tribunals and to fair trial

(2007), para. 38. See also Arutyunyan v Uzbekistan, UN Human Rights Committee, Communication No. 917/2000, para. 6.3.

2017 UNODC Model Law on Legal Aid in Criminal Justice Systems, art. 12.1.

258

259

260

261

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of justice, and potentially experience any cathartic effects from close association with

remedial processes. Under international human rights law, judicial proceedings in

general must normally be public, absent exceptional reasons for closing the court.

262

Victims have a right as members of the public to attend, as well as a special claim to

attend due to their victim status, even if they are not also participating as witnesses,

parties, interveners or

amici.

In cases where physical space in court facilities is limited, and there is intense public

interest in attending proceedings, or there are large numbers of victims, it may be

necessary to take special measures to accommodate as many victims (alongside others

who wish to attend, from the general public to the media) as possible. Such measures

could include, for example, provision of a larger court room, live video and audio feeds

to a remote courtroom(s) accommodating additional victims, or the public television or

radio broadcasting of proceedings, subject to the rights of parties, witnesses and victims

(including non-disclosure of private, confidential, sensitive, or security information).

Proceedings may require translation where the language of the court is not accessible,

including to foreign victims or those attending remotely. The comprehensibility of

proceedings, and thus access to justice, may further require that victims be accompanied

by a support person (as from a victims’ unit or CSO) to explain the proceedings, answer

questions, and ensure necessary support is provided (such as psychological care).

Sub-paragraph 3 (e)

establishes the right of victims to attend legal proceedings

remotely. It is important for many victims to do so and providing for it is a satisfaction

measure that the State should take.

263

Two possibilities are envisaged: (a) expanding the

physical space of the court by use of multiple courtrooms, thus allowing more people to

participate in or attend the proceeding; or (b) more informal use of non-judicial locations

for disseminating the proceedings to a wider audience, with delay as needed. The latter

method must be “accessible”, inter alia meaning that victims should be able to follow the

trial without taking on undue hardships.

264

Some victims, such as cross-border victims

or those who are yet hospital-bound, may be unable to travel to a court room. In these

situations, the State should take alternative measures to ensure that the victim can attend,

such as establishing secure viewing locations appropriate for the victim with appropriate

support. Both situations apply where public broadcasting is not available and thus the

confidentiality of transmissions must be assured.

262

263

264

ICCPR, art. 14 (1).

2005 Basic Principles and Guidelines, para. 22.

1985 Declaration of Basic Principles, paras. 6 (a), 6 (d).

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Sub-paragraph 3 (f)

connects with the long-term needs of victims, including the needs of

the State which was the target of the attack. The paragraph requires the State to record

the trial for posterity, in order that the injured State and victims will have documentation

of the attack and the subsequent trial(s). It is necessary for the defendant to have a fair

trial, as protected in international law, and thus the default is for the recording to not

become public for a set period of time. While the recording can be published sooner, the

delay must be such that the trial and all of its appeals are concluded, so as not to harm

the defendant’s rights to a fair trial.

Sub-paragraph 3 (g)

affirms the general requirement of a fair hearing under international

law. The elements of a fair hearing apply to proceedings involving all victims, not only

victims of terrorism, and are not particularized here. However, reference can be made

to article 14 of the International Covenant on Civil and Political Rights, addressing the

components of fair trial in civil and criminal proceedings; the core features of which

should be extended also to administrative proceedings involving victims.

Paragraph 4

requires criminal investigations and prosecutions to be gender-sensitive,

including by taking into account all gendered harms and reflecting these in the scope of

investigations, selection of charges, and treatment of suspects who are also victims. This

is based on UN General Assembly resolution 72/194, which encourages “mainstreaming

gender perspectives into criminal justice responses to terrorism, in full compliance

with human rights law, in order to … promote the full protection of women and girls

from any form of exploitation or violence perpetrated by terrorists”.

265

This principle is

further enumerated by the UNODC

Handbook on Gender Dimensions of Criminal Justice

Responses to Terrorism.

266

Paragraph 5: Assessment of Victims’ Needs and Cooperation between Actors.

Paragraph 5

aims to enhance the effectiveness of legal representation, legal aid and

access to justice by requiring the competent authority to coordinate the assessment

of a victim’s needs in relation to the proceedings. Such assessment must involve the

participation and cooperation of relevant actors such as legal aid providers, other

professionals assisting victims, and civil society organizations (CSOs), to obtain a

comprehensive understanding of the victim and a holistic assessment of their needs.

267

265

266

UN General Assembly resolution 72/194 of 19 December 2017, para. 15.

UNODC

Handbook on Gender Dimensions of Criminal Justice Responses to Terrorism,

p. 1. See also the Guidance Note for UNODC

Staff: Gender Mainstreaming in the work of UNODC and the Gender Equality Strategy for the United Nations Office on Drugs and

Crime and the United Nations Office in Vienna (2018-2021).

Paragraph 5 is based on the 2012 United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems,

Guideline 2, para. 48 (g).

267

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Such cooperation is necessary to ensure that the particular situation and vulnerabilities

of each victim is properly understood and taken into account in the provision of legal

advice and the resulting participation in legal proceedings, so as to ensure a victim’s

needs can be adequately met in legal processes and remedies.

Paragraph 6: Temporary Residence Status.

Paragraph 6

addresses the need for victims

of terrorism who require it to be issued a temporary residency status, to ensure that they

are able to access justice. This is based on Article 7 of the Trafficking in Persons Protocol

which states: “[i]n addition to taking measures pursuant to article 6 of this Protocol, each

State Party shall consider adopting legislative or other appropriate measures that permit

victims of trafficking in persons to remain in its territory, temporarily or permanently, in

appropriate cases”.

268

Paragraph 7: Avoiding Unnecessary Delay.

Paragraph 7

embodies the maxim that justice

delayed is justice denied: unnecessary delay must be avoided in deciding cases and

enforcing decisions.

269

International human rights law recognizes that fairness in criminal

and civil proceedings

270

means that the proceedings as a whole must be expeditious

271

(through to final judgment

272

and effective measures of execution

273

), notwithstanding

delays in particular phases.

274

Whether a delay is unreasonable must be assessed in the

circumstances, taking into account:

275

the complexity of the case (including evidentiary

difficulties

276

and the number of parties

277

); the conduct of the parties; the manner in which

the case was dealt with by the administrative and judicial authorities; and any detrimental

effects delay had on the legal position of the complainant. Delays caused by lack of

resources should be addressed by additional funding for the administration of justice.

278

268

269

Trafficking in Persons Protocol, art. 7.

1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, para. 6 (e) (“Avoiding unnecessary delay

in the disposition of cases and the execution of orders or decrees granting awards to victims”).

Under ICCPR, art. 14 (1). Undue delay in criminal proceedings is additionally addressed by ICCPR, article 14 (3)(c).

UN Human Rights Committee, General Comment No. 32: Article 14, Right to equality before courts and tribunals and to fair trial

(2007), para. 27.

König v Germany,

ECtHR, para. 98.

Robins v United Kingdom,

ECtHR, paras. 28-29;

Martins Moreira v Portugal,

ECtHR, para. 44;

Silva Pontes v Portugal,

ECtHR, para.

33;

Di Pede v Italy,

ECtHR, para. 24);

Estima Jorge v Portugal,

ECtHR, paras. 36-38.

Pretto and Others v Italy,

ECtHR, para. 37.

Vojnovic v Croatia,

UN Human Rights Committee Communication No. 1510/2006 (30 March 2009), para. 8.4.

Humen v Poland,

ECtHR (Grand Chamber), para. 63.

H v United Kingdom,

ECtHR, para. 72.

UN Human Rights Committee, General Comment No. 32: Article 14, Right to equality before courts and tribunals and to fair trial

(2007), para. 27.

270

271

272

273

274

275

276

277

278

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Article 25: Participation of victims in criminal proceedings

1. The [police/prosecutor] shall provide victims with the effective opportunity to assert their rights, and

to present their views or concerns for consideration, before and during any criminal proceedings

relating to a terrorist offence, either directly or through his or her representative. Victims’ right

shall be respected, and their views shall be duly considered, in decisions whether to prosecute and

concerning the conduct of the trial. Such opportunity shall be additional to any role they may have

as a potential witness or civil party.

2. The [competent authority] shall also seek and consider the views and concerns of victims in

relation to any proposal for parole, pardon or amnesty.

3. The [court/tribunal] shall recognize the right of a victim to:

[SELECT OPTIONS]

a. Participate in proceedings as a civil party, with guarantees of due process;

b. Participate in proceedings to express their views and concerns (such as through a victim

impact statement), and to have these duly considered by the [court];

c. Seek judicial review of a decision by the [police/prosecutor] not to prosecute;

d. Bring a private prosecution, or otherwise initiate criminal proceedings;

e. Appeal a judicial decision which sentences or acquits a defendant.

[Where it is consistent with domestic criminal law principles to do so.]

4. Measures under this Article shall be consistent with a defendant’s right to a fair trial under

international law.

COMMENTARY

Article 25 facilitates access to justice in criminal proceedings by recognizing the

various means by which victims can participate in such proceedings. (The right to

be informed of proceedings affecting them is addressed separately in Article 24. The

roles permitted to victims of terrorism in criminal proceedings vary between legal

systems.

279

Victims may variously have standing to initiate criminal proceedings,

intervene in them as a distinct party to claim compensation (parties

civiles),

participate

279

UNODC, The Criminal Justice Response to Support Victims of Acts of Terrorism (2011).

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by assisting the prosecution, present views to or be consulted by police or prosecutors

on the conduct of the case, provide victim impact statements, seek review of decisions

not to prosecute, or appeal sentences or acquittals. In practice, victims’ participation

is terrorism trials can be narrower than in ordinary cases,

280

including because of

the security dimensions of the trial or the large number of casualties. Victims have

observed that this can result in a “depersonalization” or denial of the status of victim.

281

Regardless of the nature of their legal system, as a matter of principle all States should

ensure that the views and concerns of victims can be presented and considered

at appropriate stages of criminal proceedings where their personal interests are

affected, without prejudice to the accused and consistent with the relevant national

criminal justice system.

282

Allowing for the participation of victims serves a number

of purposes. It enables criminal proceedings to take into account the different harms

and needs, expectations, and priorities of individual victims,

283

including in relation

to prosecutorial strategies, sentencing, reparation and measures of protection and

assistance. It can also be an important part of recognizing the humanity of victims,

thereby publicly reinforcing the human costs of terrorism

284

and potentially providing

victims with a sense of recognition and even of catharsis.

Paragraph 1

requires police and prosecutors to provide victims with an effective

opportunity to assert their rights and to express their views, before and during trial, in

relation to decisions whether to prosecute and how to conduct the prosecution, distinct

from their role as witnesses or civil parties. It extends to the expression of views on

matters such as charge or plea bargains, sentencing submissions and reparation. It

further requires those views to be duly considered in such decision-making,

285

that is,

280

UN Human Rights Council, Terrorism and Human Rights: report of the United Nations High Commissioner for Human Rights (A/

HRC/45/27), 9 September 2020.

United Nations, Recommendations from the Secretary-General’s Symposium on Supporting Victims of Terrorism (2008).

1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, para. 6 (b) and similarly United Nations

Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, Guideline 2, para. 48 (c). See also Council of Europe

Revised Guidelines on the protection of victims of terrorism (2017), section VI, para. 6 (the position of victims must be adequately

recognized in criminal proceedings).

Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering

terrorism, Ben Emmerson, Framework principles for securing the human rights of victims of terrorism (A/HRC/20/14), 4 June

2012; UNODC, Modules: Topic 5 – Victims and their participation in the criminal justice process, July 2019.

Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering

terrorism, Ben Emmerson, Framework principles for securing the human rights of victims of terrorism, 4 June 2012 (A/HRC/20/14).

See, e.g., United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules) (1990), articles 5.1 (consider

victim rights in prosecutorial decisions) and 8 (consult victims on sentencing wherever appropriate).

281

282

283

284

285

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to be taken seriously as potentially weighty influences on decisions. The aim of the

provision is to ensure that prosecutions (or decisions not to prosecute) are adequately

informed by and sensitive to victims needs and perspectives, including on the gravity

of terrorist acts, the culpability of perpetrators, the need for and nature of punishment

and reparation, and the appropriateness of prosecutorial strategies. Ideally such input

from victims should be proactively sought through outreach by police and prosecutors,

rather than only being reactively received upon the initiative of victims themselves.

Paragraph 2

extends the principle of receiving and considering victims’ views to the

post-conviction decisions (whether executive or judicial) such as those relating to

parole (early release from prison for good behavior), amnesty or pardon. It should

be emphasized that amnesty is, however, prohibited for any terrorist act which also

qualifies as an international crime.

286

Paragraph 3

requires all States to effectively recognize victims’ interests, but allows

each State to do so in a manner “consistent with domestic criminal law principles”. It

thus accommodates fundamental variations between legal orders in the role allowed

to victims in criminal proceedings, by presenting a palette of optional measures

(sub-paragraphs

(a)-(e))

from which a State may choose when ensuring that victim

participation is effective in its legal system. This “single list” approach recognizes

that some measures are already found in both certain civil and common law systems

(as well as in States which do not neatly correspond with any common or civil-law

classification); and encourages all States to consider progressively adopting measures

not already familiar to its national law.

Sub-paragraph 3 (a)

provides a right of victims to participate in the proceedings as

a civil party, including the trial and any subsequent reparations phase. Such right of

intervention or participation, distinct from the interests of the public prosecutor, is

normally associated with the rights of

parties civiles

in some civil law systems as well

as before certain international criminal tribunals.

287

Civil parties may be entitled to

participate in all phases of the trial (although their role may be particularly prominent

286

UN Secretary-General, report on “The rule of law and transitional justice in conflict and post-conflict societies”, (S/2004/616),

23 August 2004, para. 64 (c); ICRC Customary IHL Rule 159 (war crimes);

Prosecutor v. Morris Kallon and Brima Bazzy Kamara

(Appeals Chamber Decision on Challenge to Jurisdiction: Lomé Accord Amnesty), SCSL-2004-16-AR72(E) (13 March 2004), para.

73;

Prosecutor v. Anto Furundžija

(Judgment) IT-95-17/1-T (10 December 1998), para. 155; and

Barrios Altos v Peru

(Merits),

IACtHR Series C No 75 (14 March 2001), para 41. Cf.

Prosecutor v Saif Al-Islam Gaddafi

(Admissibility Appeal Decision) ICC-

01/11-01/11 (9 March 2020), para. 96;

Marguš v Croatia

[GC] ECHR 2014-III, para. 139; and the Belfast Guidelines on Amnesty and

Accountability 2013, para. 7 (c)(i).

Such as the Extraordinary Chambers in the Courts of Cambodia and the Special Tribunal for Lebanon.

287

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at the reparation phase), with rights similar to the prosecution and defence. Particularly

important forms of participation (in addition to involvement in any reparation phase)

include the right to adduce and challenge evidence, to make submissions on points of

law or procedure or on the conduct of the trial. Due process must be afforded to the

extent that it relevant to the circumstances of a civil party, including fairness, equality

of arms (including as regards evidence, time limits, and appeal rights), the right to

know the other party’s allegations and evidence, and the right to be heard (including to

present one’s own evidence and to contest adverse evidence).

Sub-paragraph 3 (b)

recognizes that participation could take more limited forms than

as civil parties, as where a court allows a party to express their views and concerns

at relevant points in the proceedings (including the acceptability of charge or plea

bargains through to the reparation phase).

288

A particular form of such participation

is the victim-impact statement (oral or written), as in some common law countries.

It allows a victim to present a victim impact statement (oral or written) to the court,

independent of the prosecution, by which they can express in their own words, free of

legal technicality and jargon, the personal impact of the terrorist act upon their lives.

289

Such statements are distinct from any role of the victim as a witness. Victim-impact

statements may be particularly relevant to the court’s assessment of the gravity of

the crime, including by way of aggravating factors, and its evaluation of appropriate

penalties and reparation. Forms of participation known as third party “intervener” and

amicus curiae also fall within this provision.

Sub-paragraph 3 (c)

provides a right of victims to seek judicial review of a decision

by a public prosecutor not to prosecute

290

(alternatively, review could be done by

some other independent and impartial competent body). This right enables victims

288

As under the Rome Statute of the International Criminal Court Statute, art. 68 (3) (right of victims whose personal interests are

affected to present their views and concerns and to have them considered by the Court at appropriate stages of the proceedings).

See also report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while

countering terrorism, Ben Emmerson, Framework principles for securing the human rights of victims of terrorism (A/HRC/20/14),

4 June 2012.

See, e.g., Council of Europe Revised Guidelines on the protection of victims of terrorism (2017), section VI, para. 5 (“In cases

where, as a result of an investigation, it is decided not to take action to prosecute a suspected perpetrator of a terrorist act,

States should ensure that victims are able to ask for a review of this decision by a competent authority”). See also: UNODC, Good

Practices in Supporting Victims of Terrorism within the Criminal Justice Framework, 2015 and UNODC, Expert Consultation on

Model Provisions Regarding Victims of Terrorism, Summary Report, 2020.

289

290

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to hold public authorities accountable when discharging their duty under international

law to bring to justice the perpetrators of terrorist acts.

291

It enables the correction

of both inadvertently flawed prosecutorial decisions, as well as those motivated

by impermissible considerations (such as politically motivated or discriminatory

decisions) or attempts to confer disguised impunity upon perpetrators. Such a right

is already found in some civil and common law systems, although not in certain other

systems (particularly common-law ones) which regard such administrative decisions

as non-reviewable or non-justiciable discretions (for instance, because they involve

evaluative judgments about the strength of the evidence, prospects of conviction,

allocation of resources, or public interest considerations).

Sub-paragraph 3 (d)

confers a right of victims to bring a prosecution. Under common

law, a “private prosecution” is initiated and executed by the private party, whereas in

civil-law States an individual may initiate a prosecution but the conduct of it is then

carried out by an investigating judge. In practice victims would usually only wish to

bring a prosecution occur where the public authorities have failed to prosecute within

a reasonable time. It should be emphasized that the provision is without prejudice to

the international law obligation on all States to bring to justice perpetrators of terrorist

acts,

292

regardless of whether a victim has complained;

293

in this sense prosecutions

brought by victims are complementary to, but are not a substitute for, the discharge of

the State’s own duty.

In some States the public authorities may be entitled to suspend or terminate private

prosecutions if its own investigations are still underway; or if it wishes to initiate its

own investigations, take over the conduct of the private prosecution as its own public

one, or it believes that it is not in the interests of justice to prosecute. Where the

authorities take over prosecutions, other measures in Article 27 must still be applied

to ensure victim participation. Since victims typically lack the prosecutorial resources

and expertise of the State, the (genuine) assumption of the case by the authorities may

be desirable, prompted by the victims’ vital initiating role. The State’s assumption of a

prosecution must be in good faith and not misused in order to terminate a prosecution

which should proceed.

291

292

293

See, e.g., UN Security Council resolution 1373 (2001).

Ibid.

Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering

terrorism, Ben Emmerson, Framework principles for securing the human rights of victims of terrorism (A/HRC/20/14), 4 June

2012.

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Sub-paragraph 3 (e)

confers a right of a victim to seek judicial review of an adverse trial

judgment, namely where the victim perceives an acquittal to be unjust or a punishment

to be too lenient. As in all criminal appeals, it is not an unfettered right and national

law may regulate matters such as the legal criteria or thresholds for any appeal, the

application procedure, and time limits.

Paragraph 4

emphasizes that victim’s rights of participation in proceedings must be

consistent with a defendant’s right to a fair trial under international law,

294

including, for

example, equality of arms.

In relation to Article 25 as whole, it should be noted that a victim’s rights of self- or

legal representation and legal aid under Article 24 apply to victim participation under

Article 25. Further, it is noted that the participation of victims’ associations in criminal

proceedings is separately addressed in Chapter XVI of the Law.

Article 26: Restorative justice

1. Where appropriate and to the extent permitted by other laws, the [court or competent authority]

may use restorative-justice programmes at any stage of the criminal justice process, including at

the request of a victim, where:

a. The parties have been fully informed of their right to participate, the nature of the process,

their rights during it and the possible consequences of their decision to participate;

b. The parties acknowledge the basic facts of the case;

c. The parties have freely, voluntarily and expressly consented to participate;

d. Fundamental procedural safeguards and confidentiality are respected; fair, impartial and

trained facilitators are used;

e. The interests of victims, including their safety and well-being, are protected.

2. Restorative outcomes must be arrived at voluntarily and contain only reasonable and proportionate

obligations. The results of agreements should be supervised by [the court/competent authority] or

incorporated into judicial decisions or judgments.

3. The case should be referred back to the [court/competent authority] and a decision as to how to

proceed should be taken without delay where:

a. restorative justice processes are not suitable or possible;

294

ICCPR, art. 14. See also United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems (2021),

Principle 4 (legal aid to victims is “[w]ithout prejudice to or inconsistency with the rights of the accused”).

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b. no agreement is reached between the parties;

c. there is a failure to implement an agreement.

COMMENTARY

Article 26 recognizes that restorative justice programmes may be used in the context

of criminal proceedings, in appropriate circumstances. It is based on the 2000 United

Nations Basic Principles on the Use of Restorative Justice Programmes in Criminal

Matters and other international standards.

295

States may wish to refer to those standards

for definitions of key concepts such as restorative justice “programmes”, “processes”

and “outcomes’”.

296

The objectives of restorative justice include supporting victims by

giving them a voice concerning the impacts of and the resolution of the crime, repairing

relationships ruptured by the crime, denouncing crime and reaffirming community values,

encouraging offenders to take responsibility, identifying restorative outcomes, reducing

recidivism by encouraging behavioral change, and identifying factors conductive to

the crime, future prevention and structural or institutional reform.

297

Restorative justice

processes can empower individual victims by giving them more control over efforts to

redress the terrorist crime, including so as to avoid secondary victimization.

Restorative justice should not undermine victims’ right to truth through retributive

justice, or the State’s obligation to investigate and prosecute perpetrators of violent

terrorist crimes, including sexual and gender-based violence. It should generally be a

complementary not a substitute measure, by involving a process or outcome additional

to criminal punishment, or which itself forms part of the criminal punishment.

298

In the

295

2002 United Nations Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters; UN General Assembly

resolution 69/194 of 18 December 2014; ECOSOC resolutions 1999/26 (1999), 2000/14 (2000), 2002/12 (2002), and 2016/17

(2016); Directive 2012/29/EU of the European Parliament and of the Council (25 October 2012) establishing minimum standards

on the rights, support and protection of victims of crime, art. 12; and EU Council Framework Decision of 15 March 2001 on the

Standing of Victims in Criminal Proceedings, art. 10.

2002 UN Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, paras. 1 (restorative justice

programme), 2 (restorative process), 3 (restorative outcome). See also ECOSOC resolutions 2002/12 (2002), paras. 1-3 (restorative

justice programme, restorative process, and restorative outcome respectively); and UNODC Handbook on Restorative Justice

Programmes, pp. 14-15 (main categories of programmes are (a) victim offender mediation; (b) community and family group

conferencing; (c) circle sentencing; (d) peacemaking circles; and, (e) reparative probation and community boards and panels), 29-

20 (indigenous and customary justice). See also 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse

of Power, para. 7 (“Informal mechanisms for the resolution of disputes, including mediation, arbitration and customary justice or

indigenous practices, should be utilized where appropriate to facilitate conciliation and redress for victims”).

UNODC

Handbook on Restorative Justice Programmes,

pp. 10-11.

Ibid., p. 16.

296

297

298

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context of States’ obligations to “bring to justice” persons involved in terrorist acts,

299

the United Nations Security Council has urged States “to develop and implement

comprehensive and tailored prosecution, rehabilitation, and reintegration strategies and

protocols”.

300

While the use of restorative justice in response to terrorism is still developing, it can

be very effective in challenging key aspects of violent extremism and widen access

to justice for victims.

301

While violent extremism is nourished by social and political

polarization, lack of empathy and the depersonalization or dehumanizing of victims,

restorative justice is based upon connecting people through dialogue and presenting

victims as living, suffering people. The process confronts perpetrators with the truth

and emotion of victims’ stories, experiences, questions and requests. Restorative

justice can be particularly useful in terrorism cases involving large numbers of victims,

whose complex individual and collective interests and needs may be difficult to fully

accommodate solely within criminal proceedings. Such processes can also engage a

wider case of participants (including a wider circle of “victims”

302

) in the community

affected by terrorism and broaden the reach of justice, reparation, reconciliation and

prevention of reoccurrence.

There are many possible restorative justice processes

303

and their use is context

dependent (including as to the nature and scale of the terrorist acts; political, cultural

and security factors; and the victims’ characteristics). One common method is victim-

offender mediation, which may lead to an agreement involving apology, reparation,

compensation, and help restore relations; it may also provide an opportunity for victims

to ask questions, hear from the offender, and reach closure.

304

It may or may not involve

299

300

Under UN Security Council resolution 1373 (2001), para. 2.

UN Security Council resolution 2396 (2017), para. 30. See also UN Security Council Counter-Terrorism Executive Directorate,

Technical Guide to the Implementation of Security Council resolution 1373 (2001) and other relevant resolutions (2019), paras.

260-265; Madrid Guiding Principles, Principles 30-31; Addendum to the Madrid Principles, Guiding Principle 11.

Tim Chapman, “ ‘Nobody has ever asked me these questions’: Engaging restoratively with politically motivated prisoners in

Northern Ireland”, in Orla Lynch and Javier Argomaniz (eds.) Victims

and Perpetrators of Terrorism: Exploring Identities, Roles

and Narratives

(Routledge 2018); Guido Bertagna, Adolfo Ceretti and Claudia Mazzucato (eds),

Il libro dell’incontro: Vittime e

responsabili della lotta armata a confront

(il Saggiatore 2015); Gema Varona, “Who sets the limits in restorative justice and why?

Comparative implications learnt from restorative encounters with terrorist victims in the Basque Country” (2014), 4

Oñati Socio-

legal Studies,

p. 550.

Ines Staiger, “Restorative justice and victims of terrorism”,

Assisting Victims of Terrorism

(2009).

See generally UNODC

Handbook on Restorative Justice Programmes,

pp. 13-32.

Ibid., pp. 18, 17.

301

302

303

304

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direct contact between the parties.

305

It could involve individual victims or groups, and

may also have a role to play in situations of large-scale violence against communities.

It is also possible to apply restorative principles to the State’s response to terrorism

in situations where victim-offender dialogue is not possible, but where there are

opportunities to rebuild relationships, enable stakeholder participation or repair harm.

Paragraph 1

recognizes that restorative justice may be used at any stage of the criminal

justice process,

306

including pre-charge, pre-trial, during trial, at sentencing, and in

relation to post-conviction corrections.

307

Restorative justice may be considered by

the court or competent authorities on their own motion, or at the request of a victim

pursuant to established procedures. Attention to the proper use of police, prosecutorial

and judicial discretion is important in the effective use of restorative justice.

308

Paragraph 1

also establishes important safeguards on resort to restorative justice,

to protect the rights of victims, offenders, and the public. These are drawn principally

from the 2000 United Nations Basic Principles on the Use of Restorative Justice

Programmes in Criminal Matters, including as regards: (a) full prior information;

309

(b)

acknowledgement of the facts;

310

311

(d) fundamental

procedural safeguards,

312

confidentiality,

313

and the use of impartial, trained facilitators

314

(designed to control, for example, threatening behaviour, vengeance or domination

by victims (including unconstructive shaming), power imbalances, or domination by

individuals);

315

and (e) the parties’ safety.

316

Procedural safeguards under (d) should

more specifically include rights to legal advice and interpretation/translation, and the

305

306

307

308

309

Ibid.

2002 UN Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, para. 6.

UNODC

Handbook on Restorative Justice Programmes,

p. 13.

Ibid., pp. 72-73.

2002 UN Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters (E/2000/INF/2/Add.2), p. 35, annex,

para. 12 (b).

Ibid., para. 8.

Ibid., paras. 7 (consent) and 3(c) (no coercion or unfair inducement to participate).

Ibid., para. 12.

Ibid, para. 13 (“Discussions in restorative processes that are not conducted in public should be confidential, and should not be

disclosed subsequently, except with the agreement of the parties” or as required by national law).

Ibid, paras. 2, 18 and 19 (impartial, trained, culturally competent facilitators which respect the dignity of the parties and ensure

respect between the parties).

UNODC

Handbook on Restorative Justice Programmes,

p. 68.

2002 UN Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, para. 10 (safety).

310

311

312

313

314

315

316

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assistance of minors by parents or guardians;

317

as well as due process.

318

As a matter

of good practice, other factors relevant to the appropriateness of restorative justice

may include the gravity of the terrorist act, the culpability of the individual, and the

public interest;

319

power imbalances;

320

the risks of secondary victimization and support

available to victims;

321

whether the offender’s participation is genuine or insincere;

322

and the likelihood of a human rights-consistent resolution of the matter.

Paragraph 2

emphasizes that restorative outcomes must be voluntary.

323

This is to

protect the agency and rights of the parties, but also because the effectiveness of

agreements may depend on the offender’s good faith consent and commitment to

implement and comply with the agreed measures. Agreements or outcomes must

also contain only reasonable and proportionate obligations.

324

By this it is meant that

measures must be proportionate to not only the harm done but also the capacity of

the offender to fulfil them;

325

in addition, all measures must respect the civil rights and

dignity of individuals.

326

As a matter of good practice, to ensure agreements are effective and lawful (including

rights-respecting), the results of agreements should be judicially supervised or

incorporated into judicial decisions.

327

The judicial quality of outcomes also means

that they may be appealed by the offender or prosecution.

328

Further good practice

suggests that a restorative agreement should not prejudice the availability to victims

317

318

319

Ibid, para. 13 (a).

Ibid.

See, e.g., United Nations Security Council Counter-Terrorism Executive Directorate, Technical Guide to the Implementation of

Security Council resolution 1373 (2001) and other relevant resolutions (2019), para. 265 (c) (in the context of prosecution,

rehabilitation and reintegration strategies); addendum to the Madrid Principles (2018), Guiding Principle 11 (c).

2002 UN Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, para. 9 (“disparities leading to

power imbalances” and cultural differences between the parties: age, maturity or intellectual capacity) (in addition, see UNODC

Handbook on Restorative Justice Programmes,

p. 68 (adding age, intellectual capacity, racial, ethnic or cultural factors, or any

other attribute that may significantly compromise a person’s ability to participate equally) (the latter arguable include gender and

psychological state).

UNODC

Handbook on Restorative Justice Programmes,

p. 66.

Ibid., p. 68 (manipulation by the offender).

2002 UN Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, para. 7.

Ibid.

UNODC

Handbook on Restorative Justice Programmes,

p. 36.

Ibid., pp. 34, 35.

2002 UN Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, para. 15.

UNODC

Handbook on Restorative Justice Programmes,

p. 34.

320

321

322

323

324

325

326

327

328

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of other procedures for vindicating their rights, where those other procedures (such

as civil or administrative compensation) address rights or interests not addressed by

the restorative justice process.

329

For example, if a restorative process is limited to

establishing truth, an apology, or reconciliation, an agreement to those ends should not

exclude the victim’s right to launch civil compensation proceedings against the offender.

Paragraph 3

addresses situations where it is determined at any stage that restorative

justice is not suitable or possible

330

or, where restorative justice proceeds, no agreement

between the parties be reached

331

or a party fails to implement an agreement.

332

In all

three situations the case should be referred back to the criminal justice authorities and a

decision as to how to proceed should be taken without delay.

333

These provisions aim to

ensure that victims’ redress and perpetrator accountability are not thwarted. There may,

of course, be cases where restorative justice is unavailable or ineffective and criminal

prosecution would not succeed to conviction at trial, despite the

prima facie

sufficiency

of the evidence to commence a prosecution; indeed such doubts about trial may be

one reason why a matter is referred to restorative justice in the first place. In all cases

however these provisions require the criminal justice system must consider the matter

to determine whether the criminal process can be used in some way to ensure redress.

As a matter of good practice, where no agreement is reached in a restorative justice

process, the failure to reach agreement should not be used in subsequent criminal

proceedings,

334

for instance whether as evidence of a lack of the perpetrator’s

responsibility, as an aggravating factor because of the perpetrator’s perceived

unwillingness to take responsibility, or as a basis for drawing adverse inferences about

a victim. Further, where there is a failure to implement an agreement (other than judicial

ones), such failure (that is, by an offender) should not be used as justification for a

more severe sentence in subsequent criminal proceedings,

335

for instance as regards

the likelihood of reoffending based on that failure to implement.

329

See UNODC

Handbook

above (desirable to maintain “accessibility to conventional methods of dispute/case resolution (including

the courts”).

2002 UN Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, para. 11.

Ibid., para. 16.

Ibid., para. 17.

Ibid., paras. 11, 16-17.

Ibid., para. 16.

Ibid., para. 17.

330

331

332

333

334

335

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Chapter X. Consular assistance and protection

Article 27: Consular assistance and protection

1. Where a victim of terrorism committed in [name of State enacting this Law] is not a national of

[name of State enacting this Law] and is present in [name of State enacting this Law]:

a. A victim and consular officers of the victim’s State of nationality shall be free to communicate

with and have access to each another. Such rights shall be exercised in accordance with

the laws and regulations of [name of the State enacting this Law] and international consular

relations law;

b. Consular officers of the victim’s State of nationality may address the [competent authorities]

when protecting and assisting victims, in accordance with international consular relations law;

2. Where a victim of terrorism committed in another State is present in that State and is a national of

[name of State enacting this Law], the [competent authority] should provide effective assistance

and support with a view to protecting the victim’s rights, in accordance with international law.

COMMENTARY

Victims of a terrorist act in a foreign country (“the territorial State” on whose territory

the terrorist act took place) may face additional challenges, particularly where they are

not habitual residents with rights equivalent to nationals of the territorial State, and

including because of unfamiliarity with the local legal system, language barriers, and

other impediments to accessing justice. It may be recalled that Article 5, paragraph

1, applies the Model Legislative Provisions to every victim (national and foreign) of a

terrorist act in the State’s territory or jurisdiction who is still present in that State. The

present Chapter outlines a number of special, additional measures to enhance the rights

of such victims which are unique to their situation.

Paragraph 1(a)

establishes the right of a victim to receive, and of the State of nationality

to provide, consular assistance in the form of communication with and visits by consular

(or diplomatic or other appropriate officials) of their State of nationality.

336

It is based on

existing international consular relations law applicable in all situations (not only victims

of terrorism or victims of crime), which requires both that consular protection must be

336

1963 Vienna Convention on Consular Relations (VCCR), art. 36 (1)(a).

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exercised in accordance with the laws and regulations of the receiving state, but also

that such laws must themselves “enable full effect to be given” to consular rights.

337

which also requires the receiving State’s law.

Consular assistance and protection are rights related to nationality as defined by

national law. States may wish to additionally recognize consular protection by the State

of habitual residence of a stateless person, or indeed any person, or of some other

State exercising protection functions (such as a State exercising consular functions

on behalf of a third State),

338

but this is not required by international law. The provision

does not address the situation of dual or multiple nationality, but the principles of

general international law apply. First, any State of nationality may exercise diplomatic

protection against a third State.

339

Secondly, and progressively, a State of nationality

seeking to exercise protection against another State of nationality may do so where its

nationality is relatively “predominant”

340

(without necessarily also being “effective” or

“dominant”

341

Paragraph 1(b)

affirms the international law right of consular officials to address the

territorial State’s authorities when exercising their functions,

342

which include protecting

and helping and assisting their nationals; issuing passports and travel documents;

safeguarding the interests of minors or others lacking full capacity; and arranging legal

representation in legal proceedings.

343

Such interaction should be in accordance with

international consular-relations law, namely that consular offices may address the

competent local authorities of their consular district as a right, and the central authorities

of the receiving State if and to the extent that this is allowed by the laws, regulations

and usages of the receiving State or by the relevant international agreements.

344

Such

communications cannot be seen as an intrusion in the domestic affairs of the territorial

337

338

VCCR, art. 36 (2).

As under the VCCR, art. 8, or under bilateral or multilateral agreements: VCCR, art. 5 (m). Such arrangements may arise due because

the State of nationality lacks the resources to maintain its own consular missions, or because it lacks diplomatic relations with

the custodial State.

International Law Commission (ILC), Draft articles on diplomatic protection, article 6;

Yearbook of the International Law Commission,

2006

(A/61/10), vol. II, Part Two.

Ibid., art. 7; see also

Merge Claim,

Italian-US Conciliation Commission, 10 June 1955, Reports of International Arbitral Awards

(UNRIAA), vol. XIV, p. 236.

ILC, Draft articles on diplomatic protection, 2006, commentary to art. 7.

Ibid., art. 38.

Ibid., art. 5 (a)-(e), (d), (h), and (i), respectively.

Ibid., art. 38 (a)-(b), respectively.

339

340

341

342

343

344

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State. Such representations may naturally flow from the communications and visits

between consular officials and their nationals under paragraph 1 (a).

The exercise of consular (or wider diplomatic) protection is a right but not a duty of the

protecting State under international law.

Paragraph 2

goes beyond existing consular law

by encouraging (not requiring) the protecting State to provide effective assistance and

support with a view to protecting the victim’s rights, such as in relation to the provision and

sharing of information, access to justice (including legal representation

345

), assistance,

protection and reparation. This could occur through its diplomatic or consular officials,

or other competent authorities at home or abroad; and any necessary legislative or

regulatory measures must be put in place to enable such assistance to be provided.

The effectiveness of such measures will normally depend on working cooperatively

with the territorial State to give effect in their territory to any measures of assistance

or support. Protection must be exercised in accordance with international law, which

includes respect for the foreign State’s sovereignty and law, but also a right to exercise

protection in relation to violations of international human rights or unlawful injuries for

foreign nationals (including failure to diligently protect foreign nationals from private,

including terrorist, violence).

Other issues.

The article does not require the territorial State to respond affirmatively

to requests by the State of nationality to substantively assist their national in particular

ways (for instance, concerning information, access to justice, assistance (including

emergency payments, travel assistance, or contact with family members, or repatriation

of injured and deceased victims), protection, reparation. The article guarantees a right

to make requests, but not to have them fulfilled.

In this respect, Article 6 (2)(3) addresses international cooperation generally, including

through information exchange and administrative coordination, across the spectrum of

measures in the Model Provisions. Likewise relevant are the provisions on access to

justice under Chapter IX, including the provision of information, translation/interpreting,

and the right to attend proceedings (such as through remote access to proceedings for

victims overseas,

346

or assistance to travel to do so).

345

International law guarantees consular officials a right to arrange legal representation only where a national is in detention: 1963

Vienna Convention on Consular Relations, art. 36 (1)(c).

See, e.g., report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while

countering terrorism, Ben Emmerson, Framework principles for securing the human rights of victims of terrorism (A/HRC/20/14),

4 June 2012.

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Model Legislative Provisions

TO SUPPORT THE NEEDS AND PROTECT THE RIGHTS OF VICTIMS OF TERRORISM

Chapter XI. Child victims

Article 28: Child victims

Where a child is a victim of terrorism, in addition to the provisions in this [Law] the [competent

authorities and other relevant entities] shall apply international standards and norms regarding child

rights and child victims of crime, including the following:

1. The child’s best interests, and their right to be heard and have their views duly considered, shall be

primary considerations.

2. All measures for child victims under this [Law] shall be provided by specially trained professionals

and in accordance with their special needs.

3. Child victims, their parents or legal guardian, legal representative or support person, should be

promptly and adequately informed about the justice process and the child’s rights from the child’s

first contact with the process and throughout that process, to the extent feasible and appropriate.

4. All information provided to child victims shall be provided in a child-sensitive way, including in a

language that they use and understand and in a manner that they understand.

5. Interviews, examinations and other forms of investigation of child victims shall be conducted by

specially trained professionals in a child-sensitive way, including in a suitable environment and

in a language that the child uses and understands and in a manner that they understand, in the

presence of his or her parents, legal guardian, legal representative or support person.

6. The privacy of child victims, including any information relating to their involvement in the justice

process, shall be protected. Measures shall be taken to avoid secondary victimization and protect

child victims’ right to privacy and undue exposure to the media or public, including by:

a. Conducting court proceedings

in camera,

away from the presence of the media or public;

b. Providing for child victims to give evidence or testify in court out of sight of the defendant,

unless doing so would be inconsistent with the defendant’s right to a fair trial or contrary to

the proper administration of justice.

7. When the age of the victim is uncertain and there are reasons to believe that the victim is a child,

he or she shall be presumed to be a child and shall be treated as such.

8. If the victim is an unaccompanied child, the [competent authorities] shall:

a. Appoint an independent legal guardian responsible for safeguarding the best interests of the

child from the moment the child is identified by the authorities, if the child’s parents or those

with parental responsibility are unable to undertake that role;

b. Take all necessary steps to establish the child’s identity and nationality;

c. Make every effort to locate the child’s family when this is in his or her best interests.

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COMMENTARY

Article 28 recognizes that children who are victims of terrorism present additional

vulnerabilities. One of the reasons is that children perceive violence and death

differently and are often the most vulnerable to the effects of terrorism.

347

Children

are still developing physiologically, socially, emotionally, neurologically and cognitively.

They differ from adults in their social and emotional maturity, and their ability to make

judgements and decisions and this means they are unlikely to understand the impact of

their actions or to comprehend criminal proceedings.

348

Neuroscience has revealed that there are peak changes in brain development across

childhood and adolescence with important implications for how they assess risk and

regulate their behaviour. The prefrontal cortex, which is responsible for decision-making,

judgement, impulse control and cognitive control, is among the last parts of the brain to

mature and is not fully developed until at least the age of 20. This means that children

are not equipped to understand criminal justice procedures in the same way that adults

may be able to, as they can have short attention spans and a limited vocabulary and

lack the ability to relate events in a chronological order. They may have overwhelming

feelings of shame, fear, distress or guilt arising from their experiences. Many children

may simply not understand the complexity or seriousness of the situation they find

themselves in and be puzzled by legal terminology and procedures.

349

This necessitates

the special protections and treatment children are entitled to under international law, in

particular when coming into contact with the law.

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Applicable International Standards.

Acknowledgment of the victim status of children is a

precondition for them having access to rights as victims of crime, especially as participants

in legal proceedings and concerning their rights to reparation and rehabilitation; it may

also assist them in their efforts to achieve reconciliation with their communities.

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Crucially, all actions undertaken in relation to child victims, including those considered

347

348

See OCT

Handbook

and UNICEF, “Silent Shame: Bringing out the voices of children caught in the Lake Chad crisis” (2017).

See Committee on the Rights of the Child, General Comment No. 24, Children’s rights in the child justice system (CRC/C/GC/24),

18 September 2019, para. 22.

See UNODC,

Justice for Children in the Context of Counter-Terrorism: A Training Manual,

(Vienna, 2019), pp. 53-54.

See Committee on the Rights of the Child, General Comment No. 24 (2019) on children’s rights in the child justice system (CRC/C/

GC/24).

See UNODC Handbook on Children Recruited and Exploited by Terrorist and Violent Extremist Groups (2017), Chapter 2; available at

https://www.unodc.org/documents/justice-and-prison-reform/Child-Victims/Handbook_on_Children_Recruited_and_Exploited_

by_Terrorist_and_Violent_Extremist_Groups_the_Role_of_the_Justice_System.E.pdf.

349

350

351

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Model Legislative Provisions

TO SUPPORT THE NEEDS AND PROTECT THE RIGHTS OF VICTIMS OF TERRORISM

child victims of terrorism under this Law, shall be based on the principles set out in the

Convention on the Rights of the Child and the 2005 United Nations Guidelines on Justice

in Matters involving Child Victims and Witnesses of Crime.

352

In particular, as

paragraph 1

of this article affirms,

the best interests of the child

must

be a primary consideration in all actions involving the child;

353

this includes the right

to protection and to a chance for harmonious development.

354

Paragraph 1 further

emphasizes the child’s

right to participation,

355

including the right (subject to reasonable

national procedural law) to express his or her views, opinions and beliefs freely, in his

or her own words, and to contribute especially to the decisions affecting his or her life.

This includes decisions in any judicial processes. Further, their views must be taken into

consideration according to the child’s abilities, age, intellectual maturity and evolving

capacity.

Reference in the

chapeau

of Article 28 to “international standards and norms” further

means that child victims of terrorism must be treated in accordance with the other

general principles in Article 8 of the 2005 Guidelines (in addition to the best interests and

participation principles), which mirror provisions in international instruments, particularly

the Convention on the Rights of the Child. These notably include the principles of:

Dignity:

356

Every child is a unique and valuable human being and as such his or

her individual dignity, special needs, interests and privacy should be respected and

protected;

Non-discrimination:

357

Every child has the right to be treated fairly and equally,

regardless of his or her or the parent’s or legal guardian’s race, ethnicity, colour,

gender, language, religion, political or other opinion, national, ethnic or social origin,

property, disability and birth or other status.

As the key reference document, the 2005 Guidelines provide extensive good practice

352

353

354

355

See ECOSOC resolution 2005/20.

See also United Nations Convention on the Rights of the Child (1989), art. 3.

2005 UN Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime, Principle 8 (c)(ii).

See also Convention on the Rights of the Child (1989), art. 12; and 2005 UN Guidelines on Justice in Matters involving Child Victims

and Witnesses of Crime, Principles 8 (d) and 21.

United Nations Convention on the Rights of the Child (1989), art. 37 (c); 2005 UN Guidelines on Justice in Matters involving Child

Victims and Witnesses of Crime, Principle 10.

United Nations Convention on the Rights of the Child (1989), art. 2; 2005 UN Guidelines on Justice in Matters involving Child

Victims and Witnesses of Crime, Principle 15.

356

357

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based on the consensus reflected in international and regional norms, standards and

principles. They aim :

■

To provide a practical framework to assist in the design and review of national

laws, procedures and practices, with a view to ensuring full respect for the rights

of child victims and witnesses of crime and implementing the Convention on the

Rights of the Child;

■

To guide professionals and, where appropriate, volunteers working with child

victims and witnesses of crime in their day-to-day practice in the adult and

juvenile justice process, consistent with the 1985 Declaration of Basic Principles

of Justice for Victims of Crime and Abuse of Power; and

■

To assist and support those caring for children in dealing sensitively with child

victims and witnesses of crime.

358

Further assistance in adapting national legislation to the Guidelines and other

international instruments is provided by the UNODC Model Law and Related Commentary

on Justice in Matters involving Child Victims and Witnesses of Crime (2009).

359

In this

regard it is recommended that if States do not have legal provisions concerning the

rights of child victims of crime, such provisions should be adopted to benefit all child

victims of crime and not only child victims of terrorism.

Association with Terrorist Groups.

Even where children are allegedly involved in criminal

or terrorism-related acts, including association with terrorist groups, they should be

considered and treated primarily as victims and are entitled to security, protection and

special assistance, in line with the Principles and Guidelines on Children Associated with

Armed Forces or Armed Groups (Paris Principles, 2007). This was also highlighted by

the UN Secretary-General’s Key Principles for the Protection, Repatriation, Prosecution,

Rehabilitation and Reintegration of Women and Children with Links to UN-listed Terrorist

Groups 2019.

360

358

See also UNODC Model Law and Related Commentary on Justice in Matters involving Child Victims and Witnesses of Crime

(2009), available at:

https://www.un.org/en/ecosoc/docs/2005/resolution%202005-20.pdf.

See also UNODC Handbook for Professionals and Policymakers on Justice in Matters involving Child Victims and Witnesses of

Crime (2009);

Training Programme on the Treatment of Child Victims and Child Witnesses of Crime - for Prosecutors and Judges and

Training Programme on the Treatment of Child Victims and Child Witnesses of Crime - for Law Enforcement Officials

(2015), available

at:

https://www.unodc.org/documents/justice-and-prison-reform/Training_Programme_on_the_Treatment_of_Child_Victims_and_

Child_Witnesses_of_Crime_-_Prosecutors_anf_Judges.pdf;

and at

https://www.unodc.org/documents/justice-and-prison-reform/

Training_Programme_on_the_Treatment_of_Child_Victims_and_Child_Witnesses_of_Crime_-_Law_Enforcement.pdf.

See Secretary General´s Key Principles for the Protection, Repatriation, Prosecution, Rehabilitation and Reintegration of Women

and Children with Links to UN listed Terrorist Groups (2019), available at:

https://www.un.org/counterterrorism/sites/www.un.org.

counterterrorism/files/key_principles-april_2019.pdf.

359

360

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Model Legislative Provisions

TO SUPPORT THE NEEDS AND PROTECT THE RIGHTS OF VICTIMS OF TERRORISM

Based on international standards, UNODC has developed comprehensive guidance on

the issue of children recruited and exploited by, and children associated with terrorist

and violent extremist groups.

361

Most notably, the UNODC Roadmap on the Treatment

of Children Associated with Terrorist and Violent Extremist Groups, 2019, provides

further guidance in three interconnected areas of work: prevention, rehabilitation and

reintegration, and justice for children in the context of counter-terrorism on this issue. It

sets 10 overarching principles for the treatment of these children that are aligned with

the Secretary-General’s 2019 Key Principles and all relevant international law.

362