Table Of ContentOXFORD COMMENTARIES ON
INTERNATIONAL LAW
General Editors: Professor Philip Alston, Professor of International Law
at New York University, and Laurence Boisson de Chazournes,
Professor of Law at the University of Geneva
The United Nations Principles
to Combat Impunity
The United Nations
Principles to Combat
Impunity
A Commentary
Edited by
FRANK HALDEMANN AND
THOMAS UNGER
Assistant Editor
VALENTINA CADELO
3
3
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Acknowledgements
The idea of this Commentary goes back several years. Its publication would not have
been possible without the continuous commitment and help of many. Warm thanks are
owed in particular to Paola Gaeta, Professor at the Graduate Institute of International
and Development Studies, for her generous help and advice. Paola was fundamentally
involved in launching, guiding and supporting the project along the way. Our heartfelt
thanks go also to Valentina Cadelo, our assistant editor to this volume. Displaying a great
sense of commitment, Valentina carried out her responsibilities with great efficiency,
humor and diplomacy, thus making a critical contribution to the project.
We thank the contributors to this volume for their hard work, patience and dedication
to this project. It has been a privilege to work with such a distinguished group of scholars
and practitioners. We particularly thank Diane Orentlicher, Professor at the American
University Washington College of Law, for responding so positively to this project, for
reading carefully the draft version of our introduction and for writing a deeply insightful
prologue that offers an insider-view of the processes and reflections leading to the current,
‘updated’ version of the UN set of Principles to combat impunity.
We also thank the advisory board members of this project. We have been fortunate to be
able to count on the support and encouragement of a remarkable group of leading experts
in the fields of human rights and transitional justice: Prof. Juan E. Méndez, Prof. Paola
Gaeta, Prof. Christof Heyns, Prof. Asma Khader, Dr. Fatsah Ouguergouz, Prof. Naomi
Roht-Arriaza, Prof. Ruti G. Teitel and Prof. Theo Van Boven. We particularly thank Prof.
Heyns for his careful comments on a previous version of the introduction to this volume.
Our warm thanks go also to the various interns who became involved in this project
throughout the years. Elena Carpanelli, Ilya Nuzov, Claudia Maritano, Francesca Pastore,
and Michael Mazliah provided each valuable support to the project through various re-
search activities.
We had the chance to carry out this project with the support of our academic home in-
stitution, the Geneva Academy of International Humanitarian Law and Human Rights.
The Geneva Academy provided, and continues to provide, a stimulating environment
for thinking about the role of human rights in fighting impunity. Special thanks go to
the Director of the Geneva Academy, Professor Robert Roth, as well as to the Academy’s
Executive Manager, Kamelia Kemileva, for their support throughout the project.
It has been a pleasure to work with Oxford University Press and the editors who
accompanied this project, particularly Merel Alstein, Natasha Flemming and James
Baird. We especially thank Catherine Minahan for her outstanding and painstaking
copy-editing and proofing work.
We dedicate this volume to the past, current and future students of the Geneva Academy
Master in Transitional Justice, Human Rights and the Rule of Law. As co-directors of this
programme, we had the privilege to teach an amazingly vibrant and intellectually curious
vi Acknowledgements
student community. We hope that the present volume will stimulate their thinking and
work in relation to transitional justice and the fight against impunity.
A very warm thank you finally goes to our partners, Graziella and Nadine, for bearing
with us throughout the highs and lows of undertaking this project.
Frank Haldemann and Thomas Unger
Geneva, 18th December 2017
Contents
Table of Cases xi
Table of Legislation xxi
List of Contributors xxxi
Prologue (Diane Orentlicher) 1
Introduction (Frank Haldemann and Thomas Unger) 4
Preamble (Theo van Boven) 26
Definitions (Sandra Krähenmann) 34
PART I COMBATING IMPUNITY: GENERAL OBLIGATIONS
Principle 1. General Obligations of States to Take Effective Action
to Combat Impunity (Naomi Roht- Arriaza) 47
PART II THE RIGHT TO KNOW
A. GENERAL PRINCIPLES
Principle 2. The Inalienable Right to the Truth (Dermot Groome) 59
Principle 3. The Duty to Preserve Memory (Julia Viebach) 71
Principle 4. The Victims’ Right to Know (Dermot Groome) 79
Principle 5. Guarantees to Give Effect to the Right
to Know (Thomas Unger) 87
B. COMMISSIONS OF INQUIRY
Principle 6. The Establishment and Role of Truth
Commissions (Ilya Nuzov and Mark Freeman) 97
Principle 7. Guarantees of Independence, Impartiality,
and Competence (Ilya Nuzov and Mark Freeman) 107
Principle 8. Definition of a Commission’s Terms of
Reference (Alison Bisset) 116
Principle 9. Guarantees for Persons Implicated (Alison Bisset) 123
Principle 10. Guarantees for Victims and Witnesses Testifying
on Their Behalf (Alison Bisset) 129
Principle 11. Adequate Resources for Commissions (Howard Varney) 136
Principle 12. Advisory Functions of the Commissions
(Isabel Robinson and Howard Varney) 144
Principle 13. Publicizing the Commission’s Reports
(Catherine Harwood and Carsten Stahn) 152
viii Contents
C. PRESERVATION OF AND ACCESS TO ARCHIVES BEARING
WITNESS TO VIOLATIONS
Principle 14. Measures for the Preservation of Archives
(Valentina Cadelo and Trudy Huskamp Peterson) 163
Principle 15. Measures for Facilitating Access to Archives
(Valentina Cadelo and Trudy Huskamp Peterson) 172
Principle 16. Cooperation Between Archive Departments
and the Courts and Non- Judicial Commissions
of Inquiry (John D Ciorciari) 181
Principle 17. Specific Measures Relating to Archives Containing
Names (Valentina Cadelo and Trudy Huskamp Peterson) 188
Principle 18. Specific Measures Related to the Restoration of
or Transition to Democracy and/ or Peace (John D Ciorciari) 196
PART III THE RIGHT TO JUSTICE
A. GENERAL PRINCIPLES
Principle 19. Duties of States with Regard to the Administration
of Justice (Kai Ambos) 205
B. DISTRIBUTION OF JURISDICTION BETWEEN NATIONAL,
FOREIGN, INTERNATIONAL, AND INTERNATIONALIZED COURTS
Principle 20. Jurisdiction of International and Internationalized
Criminal Tribunals (William A Schabas) 219
Principle 21. Measures for Strengthening the Effectiveness of
International Legal Principles Concerning Universal and International
Jurisdiction (Paola Gaeta) 226
C. RESTRICTIONS ON RULES OF LAW JUSTIFIED BY ACTION
TO COMBAT IMPUNITY
Principle 22. Nature of Restrictive Measures (Giulia Pinzauti) 245
Principle 23. Restrictions on Prescription (Giulia Pinzauti) 250
Principle 24. Restrictions and Other Measures Relating
to Amnesty (Ilia Maria Siatitsa and Marieke Wierda) 258
Principle 25. Restrictions on the Right of Asylum (Colin Harvey) 270
Principle 26. Restrictions on Extradition/N on Bis in Idem (Robert Roth) 281
Principle 27. Restrictions on Justifications Related to Due Obedience,
Superior Responsibility, and Official Status (Max du Plessis) 291
Principle 28. Restrictions on the Effects of Legislation on Disclosure
or Repentance (Christopher Gosnell) 305
Principle 29. Restrictions on the Jurisdiction of Military
Courts (Fionnuala Ní Aoláin) 315
Contents ix
Principle 30. Restrictions on the Principle of the Irremovability
of Judges (Christopher Gosnell) 324
PART IV THE RIGHT TO REPARATION/ GUARANTEES
OF NON-R ECURRENCE
A. THE RIGHT TO REPARATION
Principle 31. Rights and Duties Arising Out of the Obligation
to Make Reparation (Frank Haldemann) 335
Principle 32. Reparation Procedures (Pierre d’Argent and Isabelle de
Ghellinck) 349
Principle 33. Publicizing Reparation Procedures (Lisa J Laplante) 361
Principle 34. Scope of the Right to Reparation (Lucas S Grosman) 369
B. GUARANTEES OF NON- RECURRENCE OF VIOLATIONS
Principle 35. General Principles (Alexander Mayer-Rieckh and Roger
Duthie) 383
Principle 36. Reform of State Institutions (Alexander Mayer-Rieckh and
Roger Duthie) 392
Principle 37. Disbandment of Parastatal Armed Forces/ Demobilization
and Social Reintegration of Children (Roger Duthie and Alexander
Mayer- Rieckh) 399
Principle 38. Reform of Laws and Institutions Contributing
to Impunity (Roger Duthie and Alexander Mayer- Rieckh) 406
Index 413
