Right to a remedy under the ICCPR
The ASFP Act's provision that provides immunity for military officers from any prosecution,
suit or any other legal proceeding in respect of anything done or purported to be done in
exercise of the powers conferred by the Act is incompatible with article 2 (3) of the ICCPR
which provides the following:
"Each State Party to the present Covenant undertakes: (a) [t]o ensure
that any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the
violation has been committed by persons acting in an official capacity;
(b) [t]o ensure that any person claiming such a remedy shall have his
right thereto determined by competent judicial, administrative or
legislative authorities, or by any other competent authority provided for
by the legal system of the State, and to develop the possibilities of
judicial remedy; (c) [t]o ensure that the competent authorities shall
enforce such remedies where granted".
(a) Requirements of article 2(3) of the ICCPR
It is a well-established principle of international human rights law that violations of human
rights, such as unjustified deprivation of life, torture, cruel, inhuman and degrading treatment
and arbitrary arrest and detention entail a duty on the part of state authorities to conduct a
_____________________________
152 Human Rights Committee, Concluding Observations on the Sixth Periodic Report of the Russian Federation, UN
Doc. CCPR/C/RUS/CO/6 (24 November 2009), at para. 25.
153 Ibid., at para. 27.
prompt, impartial and effective investigation. This principle is reflected in article 2 (3) which
requires that individuals have accessible and effective remedies to vindicate their human rights.154
Where public officials or State agents have committed violations of the Covenant rights such as
those guaranteed under articles 6, 7, and 9 thereof, the state may not relieve perpetrators from
personal responsibility, for example, through amnesties or immunities.155 Other impediments to
the establishment of legal responsibility should also be removed, such as the defence of
obedience to superior orders or statutes of limitation.156
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 Law157 specify that the right to an effective remedy has two components. It
comprises a procedural right to effective access to justice158 and a substantive right to receive
adequate forms of reparation,159 namely restitution, compensation, rehabilitation, satisfaction and
guarantees of non-repetition. Failure to ensure a remedy in respect of effective access to justice
or obtaining adequate forms of reparation could in and of itself give rise to a separate breach of
the ICCPR.160
The right to an effective remedy includes a corresponding duty of the state to conduct effective
investigations. Indeed, the Committee frequently states in its views that respondent States parties
found to have violated substantive rights should undertake "a comprehensive and impartial
investigation" of the issue found to be in breach of the Covenant.161 Where sufficient evidence is
available, states must bring to justice perpetrators of human rights violations through criminal
prosecution and punishment of those responsible for such violations.162 Perpetrators may not be
relieved from personal responsibility if they are public officials or State agents. No official status
justifies immunity from legal, primarily criminal, responsibility for persons who may be accused
of serious human rights violations, such as arbitrary killings, torture, cruel, inhuman and
degrading treatment, and enforced disappearances.163
(b) Compatibility of the Act with article 2 (3) of the ICCPR
The all-embracing immunity provision of the AFSP Act effectively precludes the possibility of
redress for victims of serious human rights violations resulting from its application. The law
itself is in breach of article 2 (3) in relation to cases where substantive rights guaranteed by the
ICCPR, including the right to life, to be free from torture, cruel, inhuman and degrading
treatment, and not to be arbitrarily arrested and detained, have been violated, or there is a
credible allegation that they have been violated.
_____________________
Human Rights Committee, General Comment No. 31, supra note 85, at para. 15.
Ibid., at para. 18.
156 Ibid.
157 Adopted and proclaimed by the UN General Assembly Resolution 60/147 of 16 December 2005,
http://www2.ohchr.org/english/law/remedy.htm.
158 Ibid., para. 12.
159 Ibid., para. 18.
160 Human Rights Committee, General Comment No. 31, supra note 85, at para. 18.
161 Wilson v. The Philippines, Human Rights Committee, UN Doc. CCPR/C/79/D/868/1999 (30 October 2003), at para. 9.
162 Bautista v. Colombia, Human Rights Committee, UN Doc. CCPR/C/55/D/563/1993 (13 November 1995), at para. 8.6.
163 Human Rights Committee, General Comment No. 31, supra note 85, at para. 18.
In its practical effect, the immunity provision of the AFSP Act resembles amnesty laws that
make it impossible to investigate and prosecute perpetrators of serious human rights violations,
including torture. It effectively shields the military officers operating in Manipur from
prosecution and results in impunity. Indeed, no cases are known in which the Central
Government waived the immunity of military officers alleged to have been responsible for
violations.
This runs counter to the Vienna Declaration and Programme of Action adopted at the seminal
World Conference on Human Rights, which urged all states to "abrogate legislation leading to
impunity for those responsible for grave violations of human rights such as torture and
prosecute such violations, thereby providing a firm basis for the rule of law".164 The Human
Rights Committee expressed its concern about the fact that criminal prosecutions or civil
proceedings against members of the security forces acting under special powers (such as the Act)
may not be commenced without the sanction of the central Government of India. It noted that
this contributes to a climate of impunity and deprives those individuals who are on India's
territory and within India's jurisdiction of remedies to which they are entitled in accordance with
article 2 (3) of the ICCPR.165 There has been no change in the law or in practice that would
undermine the validity of the Committee's findings in this regard.
____________________________________
164 UN Doc. A/CONF.157/23 (12 July 1993), at para. 60.
165 Human Rights Committee, Concluding Observations on the Third Periodic Report of India, supra note 3, at para. 21.
The ASFP Act's provision that provides immunity for military officers from any prosecution,
suit or any other legal proceeding in respect of anything done or purported to be done in
exercise of the powers conferred by the Act is incompatible with article 2 (3) of the ICCPR
which provides the following:
"Each State Party to the present Covenant undertakes: (a) [t]o ensure
that any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the
violation has been committed by persons acting in an official capacity;
(b) [t]o ensure that any person claiming such a remedy shall have his
right thereto determined by competent judicial, administrative or
legislative authorities, or by any other competent authority provided for
by the legal system of the State, and to develop the possibilities of
judicial remedy; (c) [t]o ensure that the competent authorities shall
enforce such remedies where granted".
(a) Requirements of article 2(3) of the ICCPR
It is a well-established principle of international human rights law that violations of human
rights, such as unjustified deprivation of life, torture, cruel, inhuman and degrading treatment
and arbitrary arrest and detention entail a duty on the part of state authorities to conduct a
_____________________________
152 Human Rights Committee, Concluding Observations on the Sixth Periodic Report of the Russian Federation, UN
Doc. CCPR/C/RUS/CO/6 (24 November 2009), at para. 25.
153 Ibid., at para. 27.
prompt, impartial and effective investigation. This principle is reflected in article 2 (3) which
requires that individuals have accessible and effective remedies to vindicate their human rights.154
Where public officials or State agents have committed violations of the Covenant rights such as
those guaranteed under articles 6, 7, and 9 thereof, the state may not relieve perpetrators from
personal responsibility, for example, through amnesties or immunities.155 Other impediments to
the establishment of legal responsibility should also be removed, such as the defence of
obedience to superior orders or statutes of limitation.156
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 Law157 specify that the right to an effective remedy has two components. It
comprises a procedural right to effective access to justice158 and a substantive right to receive
adequate forms of reparation,159 namely restitution, compensation, rehabilitation, satisfaction and
guarantees of non-repetition. Failure to ensure a remedy in respect of effective access to justice
or obtaining adequate forms of reparation could in and of itself give rise to a separate breach of
the ICCPR.160
The right to an effective remedy includes a corresponding duty of the state to conduct effective
investigations. Indeed, the Committee frequently states in its views that respondent States parties
found to have violated substantive rights should undertake "a comprehensive and impartial
investigation" of the issue found to be in breach of the Covenant.161 Where sufficient evidence is
available, states must bring to justice perpetrators of human rights violations through criminal
prosecution and punishment of those responsible for such violations.162 Perpetrators may not be
relieved from personal responsibility if they are public officials or State agents. No official status
justifies immunity from legal, primarily criminal, responsibility for persons who may be accused
of serious human rights violations, such as arbitrary killings, torture, cruel, inhuman and
degrading treatment, and enforced disappearances.163
(b) Compatibility of the Act with article 2 (3) of the ICCPR
The all-embracing immunity provision of the AFSP Act effectively precludes the possibility of
redress for victims of serious human rights violations resulting from its application. The law
itself is in breach of article 2 (3) in relation to cases where substantive rights guaranteed by the
ICCPR, including the right to life, to be free from torture, cruel, inhuman and degrading
treatment, and not to be arbitrarily arrested and detained, have been violated, or there is a
credible allegation that they have been violated.
_____________________
Human Rights Committee, General Comment No. 31, supra note 85, at para. 15.
Ibid., at para. 18.
156 Ibid.
157 Adopted and proclaimed by the UN General Assembly Resolution 60/147 of 16 December 2005,
http://www2.ohchr.org/english/law/remedy.htm.
158 Ibid., para. 12.
159 Ibid., para. 18.
160 Human Rights Committee, General Comment No. 31, supra note 85, at para. 18.
161 Wilson v. The Philippines, Human Rights Committee, UN Doc. CCPR/C/79/D/868/1999 (30 October 2003), at para. 9.
162 Bautista v. Colombia, Human Rights Committee, UN Doc. CCPR/C/55/D/563/1993 (13 November 1995), at para. 8.6.
163 Human Rights Committee, General Comment No. 31, supra note 85, at para. 18.
In its practical effect, the immunity provision of the AFSP Act resembles amnesty laws that
make it impossible to investigate and prosecute perpetrators of serious human rights violations,
including torture. It effectively shields the military officers operating in Manipur from
prosecution and results in impunity. Indeed, no cases are known in which the Central
Government waived the immunity of military officers alleged to have been responsible for
violations.
This runs counter to the Vienna Declaration and Programme of Action adopted at the seminal
World Conference on Human Rights, which urged all states to "abrogate legislation leading to
impunity for those responsible for grave violations of human rights such as torture and
prosecute such violations, thereby providing a firm basis for the rule of law".164 The Human
Rights Committee expressed its concern about the fact that criminal prosecutions or civil
proceedings against members of the security forces acting under special powers (such as the Act)
may not be commenced without the sanction of the central Government of India. It noted that
this contributes to a climate of impunity and deprives those individuals who are on India's
territory and within India's jurisdiction of remedies to which they are entitled in accordance with
article 2 (3) of the ICCPR.165 There has been no change in the law or in practice that would
undermine the validity of the Committee's findings in this regard.
____________________________________
164 UN Doc. A/CONF.157/23 (12 July 1993), at para. 60.
165 Human Rights Committee, Concluding Observations on the Third Periodic Report of India, supra note 3, at para. 21.
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