States have an obligation to respect, protect and fulfil the right of victims of human rights violations to an effective remedy. This obligation includes three elements: Truth: establishing the facts about violations of human rights that occurred in the past; Justice: investigating past violations and, if enough admissible evidence is gathered, prosecuting the suspected perpetrators; Reparation: providing full and effective reparation to the victims and their families, in its five forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. The Mother and Baby Homes system was in operation during the time in which the international human rights legal framework emerged. The European Convention on Human Rights came into force in 1953, and many of the allegations of human rights abuses in such institutions relate to years when the convention was in force. Even before then, Ireland was aware of the internationally agreed norms expected of it in the 1948 Universal Declaration of Human Rights. Also many norms such as the prohibition of inhuman or degrading treatment were considered binding on all States as customary law and peremptory norms. Such norms were therefore applicable in cases of children resident in institutions in periods pre-dating the ECHR and other human rights conventions. The principle of ‘due diligence’ provides that where the State’s authorities knew or ought to have known of likely or actual violations of human rights, and failed to take appropriate steps to prevent the violations and/or investigate and punish the perpetrator(s), then the State bears responsibility for the violation. So even where religious-run institutions would be viewed as non-state actors, the State is responsible for violations committed by those institutions not only where the State has been directly complicit, but also where the institution in question was exercising a public function, and/or where the State had failed to exercise due diligence in the prevention or investigation of likely or actual human rights violations of which the State had knowledge or ought to have had knowledge, and/or in any other circumstances as prescribed by domestic law or international human rights treaties to which Ireland is a party.
Posted on: Tue, 01 Jul 2014 08:43:18 +0000