Reparations (transitional justice)
Encyclopedia
Reparations
Though difficult to define, reparations are broadly understood as compensation given for an abuse or injury. 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 a conflict, such as the World war 1 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. 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.
It is widely acknowledged that in order to be effective, reparations must be employed along side other transitional justice measures such as prosecutions, truth-seeking, and institutional reform. Such mechanisms ensure that compensatory measures are not empty promises, temporary stopgap measures, or attempts to buy the silence of victims.
The United Nations Basic Principles and Guidelines on the Rights to a Remedy and Reparation for Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law 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.
“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.”
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:
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. In addition, the government provided a $350 million fund to help those affected by the schools. 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.
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 $85 million USD 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. 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.
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.
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.”
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.
In additional 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.
Though difficult to define, reparations are broadly understood as compensation given for an abuse or injury. The colloquial meaning of reparations has changed substantively over the last century. In the early 1900s, reparations were interstate exchanges (see War reparations
War reparations
War reparations are payments intended to cover damage or injury during a war. Generally, the term war reparations refers to money or goods changing hands, rather than such property transfers as the annexation of land.- History :...
): punitive mechanisms determined by treaty and paid by the surrendering side of a conflict, such as the World war 1 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
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
.
In transitional justice
Transitional justice
Transitional justice generally refers to a range of approaches that states may use to address past human rights violations and includes both judicial and non-judicial approaches. They include series of actions or policies and their resulting institutions, which may be enacted at a point of...
, 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. 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.
It is widely acknowledged that in order to be effective, reparations must be employed along side other transitional justice measures such as prosecutions, truth-seeking, and institutional reform. Such mechanisms ensure that compensatory measures are not empty promises, temporary stopgap measures, or attempts to buy the silence of victims.
Types of Reparation
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. 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 Rights to a Remedy and Reparation for Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law describes five formal categories of reparations: restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition.
1. Restitution
Restitution
The law of restitution is the law of gains-based recovery. It is to be contrasted with the law of compensation, which is the law of loss-based recovery. Obligations to make restitution and obligations to pay compensation are each a type of legal response to events in the real world. When a court...
– 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
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory 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
Memorialization
Memorialization generally refers to the process of preserving memories of people or events. It can be a form of address or petition, or a ceremony of remembrance.-Memorialization as a Human Right:...
.
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.
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.”
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.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:
- The Universal Declaration of Human RightsUniversal Declaration of Human RightsThe Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
– Article 8 - The International Covenant on Civil and Political RightsInternational Covenant on Civil and Political RightsThe International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...
– Article 2 - The International Convention on the Elimination of All Forms of Racial Discrimination – Article 6
- The United Nations Convention Against TortureUnited Nations Convention Against TortureThe United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is an international human rights instrument, under the review of the United Nations, that aims to prevent torture around the world....
– Article 14 - The Convention on the Rights of the Child – Article 39
- The Hague Conventions respecting the Laws and Customs of War on Land – Article 3
- Protocol Additional to the Geneva ConventionsGeneva ConventionsThe Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...
relating to the Protection of Victims of International Armed Conflicts – Article 91 - The Rome Statute of the International Criminal CourtRome Statute of the International Criminal CourtThe Rome Statute of the International Criminal Court is the treaty that established the International Criminal Court . It was adopted at a diplomatic conference in Rome on 17 July 1998 and it entered into force on 1 July 2002. As of 13 October 2011, 119 states are party to the statute...
(ICC) – Articles 78 and 75
Examples of Reparations Programs
Canada – For more than 100 years, CanadaCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
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
Royal Commission on Aboriginal Peoples
The Royal Commission on Aboriginal Peoples was a Canadian Royal Commission established in 1991 to address many issues of aboriginal status that had come to light with recent events such as the Oka Crisis and the Meech Lake Accord. The commission culminated in a final report of 4000 pages,...
(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. In addition, the government provided a $350 million fund to help those affected by the schools. 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.
Chile – In 1990, Chile
Chile
Chile ,officially the Republic of Chile , is a country in South America occupying a long, narrow coastal strip between the Andes mountains to the east and the Pacific Ocean to the west. It borders Peru to the north, Bolivia to the northeast, Argentina to the east, and the Drake Passage in the far...
’s newly elected president Patricio Aylwin
Patricio Aylwin
Patricio Aylwin Azócar was the first president of Chile after its return to democratic rule in 1990, following the military dictatorship of General Augusto Pinochet.- Early life :...
created the National Truth and Reconciliation Commission to investigate the human rights abuses of General Augusto Pinochet
Augusto Pinochet
Augusto José Ramón Pinochet Ugarte, more commonly known as Augusto Pinochet , was a Chilean army general and dictator who assumed power in a coup d'état on 11 September 1973...
’s 1973-1990 dictatorial regime. The commission investigated disappearances, political executions, and torture, publishing the Rettig Report
Rettig Report
The Rettig Report, officially The National Commission for Truth and Reconciliation Report, is a 1991 report by a commission designated by then President Patricio Aylwin encompassing human rights abuses resulting in death or disappearance that occurred in Chile during the years of military rule...
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
Morocco
Morocco , officially the Kingdom of Morocco , is a country located in North Africa. It has a population of more than 32 million and an area of 710,850 km², and also primarily administers the disputed region of the Western Sahara...
, 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 $85 million USD 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. 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.
Potential Problems
There are some 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. But some experts suggest that the problems lie in the very definition of reparations themselves.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.
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.”
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.
In additional 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.
External links
- Definition of "Reparation"
- The International Center for Transitional Justice's (ICTJ) Reparations Page
- Magarrell, L (2007). Reparations in Theory and Practice. Reparative Justice Series, ICTJ.
- daccessdds.un.org
- Universal Declaration of Human Rights
- International Covenant on Civil and Political Rights
- International Convention on the Elimination of All Forms of Racial Discrimination
- United Nations Convention Against Torture
- The Convention on the Rights of the Child
- Hague Convention
- http://www.unhcr.org/refworld/publisher,HAGUE,,,4374cae64,0.htmlProtocol Additional to the Geneva ConventionsGeneva ConventionsThe Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...
relating to the Protection of Victims of International Armed Conflicts] - Rome Statute of the International Criminal Court
- 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”
- ICTJ, Canada Program page
- ICTJ, “Truth and Reconciliation in Morocco.”
- Carranza, R. (2009). “The Right to Reparations in Situations of Poverty.”