TRC Final Report

Volume 6

Section 5

Chapter 1

Subsection 8

The accountability of states in respect of omissions or tolerance of violations

75. International human rights law has evolved to the point where states can be held responsible because they have failed to prevent a violation or to respond to violations as required by international law.

76. The court in the Velasquez-Rodrigues case describes such failure as ‘the lack of due diligence to prevent the violation or to respond to it.

77. This principle expands the accountability of the state to cover the official tolerance of actions, even where proof of the victim’s fate is unavailable. The facts of the Velasquez-Rodrigues case revealed evidence of a pattern of forced disappearances. The evidence included the fact that ‘it was public and notorious knowledge in Honduras that the kidnappings were carried out by military personnel or the police, or persons acting under their orders …’ The Court also heard evidence that the disappearances followed a similar pattern and were carried out in a systematic manner. These facts, taken together with the fact that officials failed repeatedly to prevent or investigate the crimes, were sufficient to hold the state responsible once the case at hand was shown to fit the pattern .

78. The Inter-American Court of Human Rights noted as follows:

If it can be shown that there was an official practice of disappearances in Honduras carried out by the government or at least tolerated by it, and if the disappearance can be linked to that practice, the allegations will have been proven to the court’s satisfaction.

79. The court went further and held:

that where the acts of private parties that violate the Convention are not seriously investigated, those parties are aided in a sense by the government, thereby making the State re sponsible .

80. Thus the concept of state responsibly or liability for a failure to act or prevent or punish violations is not limited to cases where the perpetrators are state agents and problems exist with regard to a lack of evidence. The state may be held accountable even where private persons or groups act to deprive individuals of their fundamental rights, if it fails to act to investigate and punish such actions.

81. The key factor in testing responsibility is whether a human rights violation has been committed with the support or tolerance of the public authority or if the state has allowed the violation to go unpunished.^{1 9}

82. The European Court of Human Rights has also held that private citizens may hold the state responsible for tolerating human rights abuses that have been carried out. Thus for example, a state whose legal framework leaves individuals vulnerable to violations of their fundamental rights without adequate recourse , or fails to enact laws restraining the excessive use of force by the authorities, or neglects to punish such abuses, may be held accountable at the internation a l level for failing to guarantee rights recognised under international law. Back to Contents Page...go to page 607