Reparations (transitional justice)

Reparations are broadly understood as compensation given for an abuse or injury.[1] The colloquial meaning of reparations has changed substantively over the last century. In the early 1900s, reparations were interstate exchanges (see war reparations): punitive mechanisms determined by treaty and paid by the surrendering side of conflict, such as the World War I reparations paid by Germany and its allies. Now, reparations are understood as not just war damages but compensation and other measures provided to victims of severe human rights violations by the parties responsible. The right of the victim of an injury to receive reparations and the duty of the part responsible to provide them has been secured by the United Nations.

In transitional justice, reparations are measures taken by the state to redress gross and systematic violations of human rights law or humanitarian law through the administration of some form of compensation or restitution to the victims. Of all the mechanisms of transitional justice, reparations are unique because they directly address the situation of the victims. Reparations, if well designed, acknowledge victims' suffering, offer measures of redress, as well as some form of compensation for the violations suffered.[2] Reparations can be symbolic as well as material. They can be in the form of public acknowledgement of or apology for past violations, indicating state and social commitment to respond to former abuses.

Proponents of reparations assert[3][4] that in order to be effective, reparations must be employed alongside other transitional justice measures such as prosecutions, truth-seeking, and institutional reform.[5] Such mechanisms ensure that compensatory measures are not empty promises, temporary stopgap measures, or attempts to buy the silence of victims.[3]

Types

The legal concept of reparation has two components: the right of the victim of an injury to receive reparation, and the duty of the party responsible for the injury to provide redress.[6] Reparations can be sought by individuals through judicial systems, or they can be policies introduced by the state to address the concerns or needs of a wider populace. While the first strategy is instrumental in creating legal precedent, the second is a more efficient way to recognize the concerns of more people.

The United Nations 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 Law [7] describes five formal categories of reparations: restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition.

  1. Restitution – measures which serve to "restore the victim to the original situation before the gross violations occurred". This can include: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return of one's place of residence, restoration of employment, and return of property.
  2. Damages Compensation – the provision of compensation "for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case". Such damage includes: physical or mental harm, lost opportunities, material damages and loss of earnings, moral damage, cost of legal, medical, psychological, and social services.
  3. Rehabilitation – medical, psychological, social services, and legal assistance
  4. Satisfaction – various measures which include the cessation of human rights violations and abuses, truth-seeking, searches for the disappeared, recovery and reburial of remains, judicial and administrative sanctions, public apologies, commemoration, and memorialization.
  5. Guarantees of non-repetition – reforms ensuring the prevention of future abuses, including: civilian control of the military and security forces, strengthening an independent judiciary, protection of civil service and human rights workers, the overall promotion of human rights standards, and the establishment of mechanisms to prevent and monitor social conflict and conflict resolution.[3]

Who receives reparation

Victims of violations of international human rights or humanitarian law have the rights to prompt, sufficient, and effective reparation. Victims can be individuals or a collective group of individuals who suffered similar violations. Such victims, as defined by the UN Basic Principles on the matter, are:

"Persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss, or substantial impairment of their fundamental rights, through acts or omissions that constitute gross violations of international human rights law, or serious violations of international humanitarian law… the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization."[3]

Who provides reparation

The state, as the authority responsible for ensuring the protection of human rights and the administration of justice within their borders, is correspondingly also responsible for providing redress for abuses and injustices suffered by their citizens. The UN Basic Principles also states that if a person or entity other than the state can be found liable for the violations and abuses endured, such party is responsible for providing reparation either directly to the victim or through compensating the state for reparations rendered.[3]

The international legal underpinning for the right to effective remedy and duty to provide reparation can be found in multiple human rights and humanitarian treaties and conventions, including:

  1. The Universal Declaration of Human Rights – Article 8[8]
  2. The International Covenant on Civil and Political Rights – Article 2[9]
  3. The International Convention on the Elimination of All Forms of Racial Discrimination – Article 6[10]
  4. The United Nations Convention Against Torture – Article 14[11]
  5. The Convention on the Rights of the Child – Article 39[12]
  6. The Hague Conventions respecting the Laws and Customs of War on Land – Article 3[13]
  7. Protocol Additional to the Geneva Conventions relating to the Protection of Victims of International Armed Conflicts – Article 91[13]
  8. The Rome Statute of the International Criminal Court (ICC) – Articles 78 and 75[14]

Examples of reparations programs

Canada – For more than 100 years, Canada retained a practice of removing indigenous Canadian children from their families and placing them in church-run Indian residential schools (IRS). This process was part of an effort to homogenize Canadian society, and included the prohibition of native language and cultural practices. In 1991, the Canadian government established the Royal Commission on Aboriginal Peoples (RCAP), charged with exploring the relationship between aboriginal peoples, the government, and society.

As a result of the commission's recommendations, the government symbolically issued an apology in a "Statement of Reconciliation", admitting that the schools were designed on racist models of assimilation. Pope Benedict XVI also issued an apology on behalf of church members who were involved in the practice.[15] In addition, the government provided a $350 million fund to help those affected by the schools.[16] In 2006, the federal government signed the Indian Residential Schools Settlement Agreement, agreeing to provide reparations to the survivors of this program. The Settlement totals approximately $2 billion, and includes financial compensation, a truth commission, and support services.[17]

In 2017 Prime Minister Justin Trudeau apologized to the LGBTQ2S people of Canada in the House of Commons and announced reparations that would be made to citizens who were injured by specific actions of the State.[18]

Chile – In 1990, Chile's newly elected president Patricio Aylwin created the National Truth and Reconciliation Commission to investigate the human rights abuses of General Augusto Pinochet's 1973-1990 dictatorial regime. The commission investigated disappearances, political executions, and torture, publishing the Rettig Report with its findings in 1991. Afterwards, its work was continued by the National Corporation for Reparations and Reconciliation. These programs recommended reparations for the victims, including: monthly pensions, educational benefits for the children of the disappeared, exemption from military service, and priority access to health services.

However, these initiatives have also been criticized on a variety of grounds, such as their refusal to identify the perpetrators of violence and their failure to recognize a comprehensive range of victims to whom reparations are due.

Morocco – In Morocco, the period between the 1960s and 1990s is often referred to as the "years of lead," referring to the massive human rights violations that occurred in the government's campaign of political oppression, including executions, torture, and the annihilation of other civil liberties. Shortly after he ascended the throne in 1999, King Mohammed VI created the Independent Arbitration Commission (IAC) to compensate the victims of forced disappearances and arbitrary detention. The IAC decided more than 5,000 cases and awarded a total of US$100 million, but victims and their families complained of lack of transparency in the tribunal's procedures and demanded truth seeking measures in addition to financial compensation.

These pressures were instrumental in leading to the 2004 creation of the Arab world's first official truth-seeking initiative, the Equity and Reconciliation Commission. The IER issued a ground-breaking reparations policy that upheld notions of gender equity and resulted in roughly US$85 million in financial compensation paid to almost 10,000 individuals, as well as recommendations on other measures such as the provision of health care and restoration of civil rights. The IER's recommendations also led to a groundbreaking collective reparations program that combined symbolic recognition of human rights violations with a development component in eleven regions that had suffered from collective punishment.[19] As of May 2010, implementation of the collective reparations program was ongoing.

Other reparations programs have been proposed and/or implemented in: Argentina, Brazil, Cambodia, Colombia, the Democratic Republic of Congo, East Timor, El Salvador, Germany, Ghana, Guatemala, Haiti, Iraq, Malawi, Liberia, South Africa, Kenya, the United States, and others.[2][20]

Dignity Restoration

Dignity restorations has been posited as a potential remedy for dignity takings and the associated dehumanization and infantilization. Unlike reparations, dignity restoration is intended to be a more comprehensive remedy that includes both reparations and restorative justice.[21]

Dignity restoration is intended to be a remedy congruent to the harms associated with deprivations of property and dignity. The term dignity restoration was born from the marriage of reparations and restorative justice.[22] The goal of restorative justice is “restoring property loss, restoring injury, restoring a sense of security, restoring dignity, restoring a sense of empowerment, restoring deliberate democracy, restoring harmony based on a feeling that justice has been done, and restoring social support.”[23] Remedying both the material and immaterial aspects of involuntary property loss requires restoration of property as well as restoration of the various relationships damaged by the unfair confiscation. In the realm of dignity takings, dignity restoration is an adequate remedy because it addresses both the deprivation of property and dignity.[21] In order for dignity restoration process to be effective, it needs incorporate restitution, redistribution, reparations, and restoration.[21] This process needs to occur with the substantial input from those harmed by the takings.[22] Because dignity takings most often occur alongside other non-property-related dignity oppression, such as rape, detainment, death, disappearance, and violence, it is critical that dignity restoration occurs in conjunction with other remedial measures.

Dignity Restoration: The South African Case

Dignity restoration for dignity takings have been researched with labor-intensive data collection and analysis, including 150 interviews conducted with South Africans whom colonial and apartheid authorities forcibly removed from their properties, as well as nine months of participant observation within the South African Land Restitution Commission.[22][24]

Potential problems

There are logistical problems inherent in reparations, such as clearly defining the objectives, goals, and processes by which reparations will be distributed, determining how to address a range of atrocities with streamlined programs, or balancing economic development with financing reparation efforts.[25] Some experts suggest that the problems lie in the very definition of reparations themselves.[26]

The right to seek and obtain reparations is vested with the state whose citizens suffered the losses, but individuals are barred from pursuing a claim for compensation directly against the state that wronged them. The grant of reparations is thus a political question, and individuals who suffered harm may be left undercompensated or uncompensated.[27]

The UN's guidelines on reparations could be contested on the fact that they equate human rights violations with violations of civil and political rights, ignoring abuses of economic, social, and cultural rights. The guidelines explicitly state that their intent is to restore victims to their status in a time of peace, but the distribution of rights and resources often wasn't equal in peacetime. Thus reparations, if their intent is to return a society to its status quo, run the risk of ignoring systemic oppression and reproducing social hierarchies.[2]

For instance, reparations programs have been critiqued for ignoring the needs of women in transitional justice processes. In 2007, women's groups mobilized to examine how reparations policies could be more responsive to victims of gender-based violence. Their efforts led to the "Nairobi Declaration on Women's and Girl's Right to a Remedy and Reparation," which states that "reparations must go above and beyond the immediate reasons and consequences of the crimes and violations; they must aim to address the political and structural inequalities that negatively shape women's and girl's lives." [28]

Some of these concerns can be addressed by empowering women to have a voice in the reparations process, challenging discriminatory practices, and educating communities about sexual violence.[16]

In addition to gender-based discrimination, children are often excluded from reparations procedures. The reasons of this are varied; reparations often fall in the hands of parents and are only indirectly given to children, and reparations programs often do not take into account the fact that children and adults are affected differently by violence. Thus reparations should also have a child-specific component to target abuses that are specifically suffered by children.[29]

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References
  1. "reparation". Merriam-Webster Online Dictionary. 2009. Retrieved September 19, 2009.
  2. See de Greiff 2008
  3. Magarrell 2007.
  4. Coates, Ta-Nehisi. "The Case for Reparations". The Atlantic. Retrieved 2018-03-23.
  5. Cf. United Nations General Assembly 2005
  6. United Nations General Assembly 2005.
  7. "OHCHR Basic Principles and Guidelines on the Right to a Remedy and Reparation". www.ohchr.org. Retrieved 2018-12-01.
  8. United Nations General Assembly (10 December 1948), Universal Declaration of Human Rights
  9. United Nations General Assembly (16 December 1966), International Covenant on Civil and Political Rights
  10. United Nations General Assembly (21 December 1965), International Convention on the Elimination of All Forms of Racial Discrimination (PDF version)
  11. United Nations General Assembly (4 February 1984), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  12. United Nations General Assembly (20 November 1989), Convention on the Rights of the Child
  13. Second International Peace Conference (18 October 1907), Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land
  14. Rome Statute of the International Criminal Court, A/CONF.183/9 Also available at Wikisource.
  15. Assembly of First Nations: "AFN National Chief Says Private Audience with Pope Benedict XVI in Vatican City "Closes the Circle" and Enables Work Towards Reconciliation for Residential School Survivors"
  16. "Canada & Transitional Justice". International Center for Transitional Justice. 28 February 2011.
  17. International Center for Transitional Justice, Canada Program page
  18. CBC News (2017-11-28), Trudeau delivers historic apology to LGBT Canadians, retrieved 2018-12-01
  19. "Truth and Reconciliation in Morocco". International Center for Transitional Justice. 25 April 2011.
  20. ""To Live as Other Kenyans Do": A Study of the Reparative Demands of Kenyan Victims of Human Rights Violations". International Center for Transitional Justice. 25 July 2011.
  21. Atuahene, Bernadette (2016). "Dignity Takings and Dignity Restoration: Creating a New Theoretical Framework for Understanding Involuntary Property Loss and the Remedies Required". Law & Social Inquiry. 41 (4): 796–823. doi:10.1111/lsi.12249. ISSN 0897-6546.
  22. Atuahene, Bernadette (2016-10-27). "Takings as a Sociolegal Concept: An Interdisciplinary Examination of Involuntary Property Loss". Annual Review of Law and Social Science. 12 (1): 171–197. doi:10.1146/annurev-lawsocsci-110615-084457. ISSN 1550-3585.
  23. Braithwaite, John (January 1999). "Restorative Justice: Assessing Optimistic and Pessimistic Accounts". Crime and Justice. 25: 1–127. doi:10.1086/449287. ISSN 0192-3234.
  24. Atuahene, Bernadette, Sifuna Okwethu : we want what's ours, OCLC 841493699
  25. Dromi, Shai M. (2014). "Uneasy Settlements: Reparation Politics and the Meanings of Money in the Israeli Withdrawal from Gaza". Sociological Inquiry. 84 (1): 294–315. doi:10.1111/soin.12028.
  26. Carranza 2009.
  27. Abraham, Haim (2019-12-01). "Tort Liability for Belligerent Wrongs". Oxford Journal of Legal Studies. 39 (4): 813–814. doi:10.1093/ojls/gqz025. ISSN 0143-6503.
  28. Nairobi Declaration on Women's and Girl's Right to a Remedy and Reparation (2007), International Meeting on Women's and Girl's Right to a Remedy and Reparation, Nairobi.
  29. Through a New Lens: A Child Sensitive Approach to Transitional Justice, International Center for Transitional Justice, 1 September 2011

Further reading
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