International Law
03 September 2018

Guaranteeing the Non-repetition of Human Rights Violations

Interview with Nita Shala.

In her PhD thesis, “Guarantees of Non-repetition for Violation of Human Rights”, Nita Shala studies the impact of human rights law on the notion of guarantees of non-repetition and demonstrates a developing and diverging approach regarding guarantees of non-repetition in international human rights law compared to the law on state responsibility in response to internationally wrongful acts, where the origin of this obligation lies. The concept has undergone considerable transformation, and nowadays a victim of human rights violations is entitled to guarantees of non-repetition, which consist of mechanisms crafted to ensure that an initial violation will not reoccur.

How did you come to choose your research topic?

Guarantees of non-repetition are measures that serve as safeguards against the repetition of an initial violation. They are one of the four traditional elements of transitional justice, along with truth, justice and reparation – interrelated areas of action that reinforce each other. Guarantees of non-repetition were initially endorsed in the principles governing the international responsibility of the state, which confirm that a state responsible for an internationally wrongful act is obliged to offer guarantees of non-repetition to the injured state or group of states.

Over the past decades there has been an increasing interest in the guarantees of non-repetition. This interest derives from both domestic and international episodes, ranging from the peace treaties after the end of the First and Second World Wars to more recent events occurring in the Balkans, Latin America, Iraq and the Horn of Africa. It is also influenced by the trend of international human rights law towards acknowledging individual-centred and society-centred rights and increasing the protection of human rights in general.

In consultation with Professor Paola Gaeta, we concurred on the absence of sufficient consolidated legal thinking on the topic of guarantees of non-repetition, in particular as an obligation to protect against violations of human rights, and on the need to fill this gap. Being an understudied topic, nonetheless with application in different legal frameworks, comparing guarantees of non-repetition in the codification of the law on international responsibility of states and in the practice of human rights bodies provides fertile ground for gaining insight into the nature of guarantees of non-repetition. Furthermore, the considerable amount of practice relevant to guarantees of non-repetition which has developed under international human rights law offers a unique opportunity to track possible changes and evolutionary trends of the notion of guarantees of non-repetition.

What are your main findings?

Under the law on state responsibility, guarantees of non-repetition are applicable very restrictively and exceptionally. The aggravated regime of responsibility provides for guarantees of non-repetition in response to human rights violations; however, pinned in the inter-state relationship context, it does not provide a possibility for victims to have their say in this reciprocal relationship.

A revised notion of guarantees of non-repetition, with widespread applicability and effect, is presented in the standards, mechanisms and jurisprudence under international human rights law. In this context, guarantees of non-repetition have gradually moved from being an exceptional measure applicable in very few cases to an endorsed form of redress that victims of human rights violations are entitled to and which concurrently responsible states are obliged to provide.

On the other hand, while under the state responsibility framework guarantees of non-repetition are recognised for their potential to prevent, it would be reasonable to assume that the influence of international human rights law would have moved them from the sphere of secondary obligations to primary obligations. Due to this influence, the trend could be that from non-repetition, the focus goes to non-occurrence in general, which would be a higher objective in itself. Regrettably, such a shift does not seem to have happened and the notion of guarantees of non-repetition has not yet expanded to imply prevention.

Guarantees of non-repetition are most commonly used in response to serious violations of human rights, and typical situations would consist of a post-conflict transitional justice setting or processes of massive reformation of institutions in a democracy following the collapse of an authoritarian regime. However, international human rights jurisprudence confirms their application to any violation of human rights, not just grave breaches of human rights.

Analysing the typology of guarantees of non-repetition unveils a variety of measures designed to ensure non-repetition. While the range of guarantees of non-repetition is very diverse, most of them fall within three groups: (1) general guarantees of non-repetition; (2) guarantees of non-repetition directed to legislative reforms aimed to revoke legislation that permits violations to happen; and (3) guarantees of non-repetition guiding reforms of institutions, such as processes of disarmament, demobilisation and reintegration of armed groups, lustration and vetting of high officials, etc. International human rights practice confirms the tendency to continually expand what is deemed as guarantees of non-repetition, meant to reflect the current state of international law on remedies and reparations, and to incorporate far more sectors of society and a broader range of potential guarantees of non-repetition.

What are you doing now?

I serve as Advisor to the Minister of Interior of the Republic of Albania. In this function, among others, I am engaged in an effort to make functional an initiative for early intervention and prevention of organised crime.

* * * * *

Nita Shala defended her PhD thesis in International Law in March 2018. Professor Vincent Chetail presided the committee, which included Professor Paola Gaeta, thesis director, and Professor Antonio Marchesi, from the Università degli Studi di Teramo, Italy.

Full citation of the PhD thesis:
Shala, Nita. “Guarantees of Non-Repetition for Violation of Human Rights.” PhD thesis, Graduate Institute of International and Development Studies, 2018.

Interview by Nathalie Tanner, Research Office.