By Taban Kiston
This paper provides a critical analysis of the victims’ rights to remedy and reparation under international law. It is premised on the context that, transitional justice and in particular victims’ rights to remedy and reparation is a generally a new phenomenon in the area of international law and international human rights law. Although the emerging nature of reparation is new in transitional justice, contemporary public international law on the other hand did not develop either in the field of reparations . While the notion of remedy and reparations in the transitional justice perspective inevitably focused on human rights approach to victims, little attention have been given to it. The international law mainly focused on investigations, prosecutions and truth commissions.
Considering that Public International mostly governs the relationships between states, the draft report of the International Law Commission on states responsibility of wrongful acts focuses particularly on the state to provide remedy and reparation for wrongful act against its citizens or a citizen of another state . The question surrounding the notion of transitional justice in the early 1980s and 1990s was, how can people respond to the conflict taking place? Does prosecution stop future conflicts or how can amnesties be trade-off to ascertain peace and what kind of amnesties? Therefore the manner of sequencing peace and justice process is somehow similar to the process of reparation to victims.
While the notion of reparation is often been talked of however it is often overlooked or little attention is being paid to. In the early 1990s – 2000s, most priorities were focused on the investigations, prosecution and truth commissions. Inasmuch as truth commissions in its findings have been making recommendations for reparation for victims, mostly no resources have been allocated for reparations programs. Such should not be replicated in South Sudan. The victims’ right to remedy and reparation is centric on state under public international law; the tricky point is, international law on reparation had been developing at the same time when transitional justice field was coming up. However, critique like Christian Bell questioned whether transitional justice is a new field of public international law.
There is a clear indication that, the notion reparations in the international human rights law is less developed compare to investigation and prosecution which has a long jurisprudence in the tribunals and courts since Nuremberg and Tokyo. However it is a solid ground to start from and South Sudan could learn from a variety of reparation programs that have been undertaken in the recent years, for example, in Peru, the Columbia, South African and Cambodia. Thus, the question is whether victims have right to reparations under international law and if so, what kind of reparations, secondly does the module reparation change during transition period when the tress hold is high?
In answering the questions, the paper will restrict itself to discuss victims’ rights to reparation during transition period because, under international human rights law, there is no derogation from obligations during peace or during wartime to deny victims of their rights to reparation. The paper will be divided into three major sections, Section One will discuss the normative framework of the victims’ right to reparations under international law and international human rights law, section two will analyse the type of reparations available to victims and victims right to equal and effective remedy under international law, section three will examine who is responsible to pay reparations to victims, because current debates surrounding state centric is fading away.
1. Development of victims’ right to remedy and reparations in international Law.
There is a general cohort of international lawyers that seems to agree that victims of human right violations have the right to remedy and reparation. The general synchronization can be attributed to the facts that, the norms of international law impose responsibility on states for violations of human rights . International law mostly governs the relationship between states, and insofar as a state commits a wrongful act against another state then, the state takes the responsibility to pay reparation to the injured party . This was clearly demonstrated in the Chorzow Factory landmark Case; it was held that, “It is the principle of international law that, the breach of an engagement involves an obligation to make adequate reparation”.
However, before the birth of international human rights law, wrongful acts committed by a state in breach of the rights of its nationals was, on one hand, regarded purely a domestic matter and, on the other hand, wrongful acts committed against another state is regarded a wrong against a state and it is the responsibility of the state to claim for the remedies asserting its rights and not that of the victim which suffered the wrongful act. Remedies and reparations were only claim by states and not individual or group of individual and this is the build on the tenet of international law that governs the relationship between states .
It was not until after the WWII, that human rights and reparation ceased to bee exclusive state matters and subject only to the national jurisdiction. After the WWII, victims of mass human rights violations were gradually allowed to seek redress before their national courts and before international tribunals and courts . This was so mainly beacuse, international human rights law became a collective response to the mass atrocities of the WWII. i This development and progression by the international human rights was ground breaking. It enabled victims of human rights violations to seek redress and claim remedies and reparations . The recognition of internal human rights law gained ground after the WWII. However, the emphasis was still more on retributive justice as were determined by the Nuremberg and the Tokyo tribunals and other national courts.
It was not until the late 1980s and 1990s, when transitional justice emerged. The visible features of this ear of transitional justice was the establishment of truth commission in many countries. These commissions started to make recommendations for reparations to victims of human rights violations. It was the work of these commissions that started to shape the normative and institutional framework that anchored reparation in international human rights alws. in addition to this, regional human rights mechanisms such as the Inter-American Court on Human Rights (IACtHR) played a greater role, for instance, in shaping the United Nation Basic Principles and Guidelines on the Right to a Remedy and Reparations for the Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, which was adopted by the UN General Assembly in 2005 .
There is a debate about the nature of these UN Basic Principles and Guidelines. This debate centres on whether whether these principles and guidelines are a summary of existing laws or a new law. regardless of these debates, these principles and guidelines have further developed and provided a ground for reparations. The guidelines provides the basis and normative framework on the rights of victims to remedy and reparation.
3. Victims’ Rights to Remedy and Reparation under International Law:
3.1.1 The Right to Effective and Equal Access to Justice.
The right to effective and equal access to justice has become firmly part of international human rights norm. The draft articles of International Law Commission (ILC), reiterates the obligations of states to fulfil their responsibility for gross violations of international human rights law and serious violations of humanitarian law . Such may include, administrative reparations, legal aid to victims . Arguably many victims would be happy to see their perpetrators be held accountable in addition to states recognising the wrongful acts committed against victims.
Although some victims may get access to the courts many may not be in position to access judicial services due to the distance and remoteness of their area. In some cases, many states, the issue of impunity may arise and this may undermine the victims’ right to effective remedy and access to justice . Principle 1 of the UN guiding principles of victims right to remedy and reparation states that, “states ensure that those suspected of criminal responsibility are prosecuted, tried and duly punished” this is however to ensure that victims of gross human rights violations are afforded effective remedies and the right to know the truth. The right to know the truth goes beyond the ordinary realm of investigations.
Regrettably the right to know the truth has little to offer in terms of investigations, it is recognised as the peoples’ right to information yet in contrast in transition periods, it is more of a victim cantered human rights approach and hence it exert pressure on states that are reluctant to investigate and prosecute those responsible of acts or omission of gross human rights violations. In fact, it is very challenging and sometimes absolutely difficult for victims to effectively claim or access their rights to remedy in court where impunity is at highest peak . This creates an impediment to victims to seek redress through legal proceedings to claim their rights. However, the obligations of state to make available reparations to victims are also stipulated in article 2(3) of the International Covenant on Civil and Political Rights (ICCPR) .
The UN Human Rights Committee in General Comment 31, interpreted article 2(3) of ICCPR, the Committee asserts that “without reparation to individuals remedy whose rights have been violated, the obligation to provide effective remedy which is central to article 2(3) is not discharged” . This reaffirms the responsibility of states stated in the ILC draft articles of 2001. In further conformity, the Committee noted that reparations may take a form of (1) rehabilitations and satisfactions notably public apologies, memorialisation, (2) restitution, (3) guarantees of non-repetition which may require institutional changes, changes in legislations and even judicial systems. Some of these forms of reparations will be elaborated below.
3.1.2 Adequate, effective and prompt reparation for harm suffered.
An adequate, effective and prompt remedy for gross violations of international human rights law or serious violations of international humanitarian law should include in many cases measures that can be easily accessible by the victims. Although this is a key principle to rights of victims to remedy and reparations under international law, it is however rendered ineffective for victims of gross…… by domestic law.
The non-prioritization of reparation programs by national courts and truth commissions make reparations processes slow, painful but yet complex issue for victims. Some of the reparation processes take decades and inadequate. For example, the United States of America only wrote a letter of apologies to Japan victims of WWII and awarded them with a cheque worth only $20000 in 1988 . While this demonstrates two forms of reparations that is compensation and grantee of non-repetition, it is however not affirms to the victims’ rights to adequate, effective and prompt reparations. Moreover the main purpose of adequate, effective and prompt reparation is to ensure justice by redressing gross violations of international human rights law or serious violations of international humanitarian law.
The compensation awarded to victims of gross violations of human rights must be proportional to the gravity of the violations and the harm suffered. To the contrary many reparation programs budgets are used in setting up truth commissions, conduct trainings, peace education and research. By the time the truth commission put forward recommendations for the victims who suffered harm; there is no enough money or capital to implement reparation programs. For example, in South Africa, the truth commission took nearly 7 years to pay compensation to victims of apartheid regime. Not only that the justice and compensation delayed but also it reduce the amount recommended paid for six year $2700 to a one off payment of $4900 . Which put the victims of gross human rights violations in a more awkward position and leaving without options.
The 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 states that in cases “where a person, a legal person, or other entity is found liable for reparation to a victim”, such party should make available to the victim the remedies. While this notion can be argued to have shifted the burden of responsibility of state for pay reparation to victims of which it is responsible for the violations committed however the primary responsibility still remains with state, as such not until the party responsible for the violation has fully compensated the victims .
3.1.3 The Right to Know the Truth:
It is undeniably that the right “to know the truth” is not explicitly found in any international law instrument but it is however generally accepted principle of international law by many human rights bodies, courts and tribunals. Article 32 of the Protocol Additional I to the Geneva Convention of 1949 provides for the victims or family the right to information to know the where about of their missing family member . More so, Article 24 (2) reiterates that “[e]ach victims’ rights to know about the issues surrounding the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person” of gross violations of human rights law and serious violation of international law, deserve to know what happened, what went wrong, how did they become victims and more so if they have member(s) of their family is nowhere to be seen, the state is bestowed with the responsibility to tell the truth or account for the wrongful acts or omissions .
The major driving force behind the right to know the truth is motivated by the victims or the relatives or the families to know their where about to help in the process of reconciliations and healing . Above of all the recognition to be acknowledged as their rights have been violated is a big incentive to victims. The yearning for truth can be used as trade-off for perpetrators as amnesty, virtually promising perpetrators that they will be prosecuted if they publicly apologise for the wrong or violations they have committed and ask for pardon, for instance, the truth and reconciliation commission have utilized this right to identify perpetrators and also in furtherance of the healing process in South Africa .
The right to know the truth, for example, arguably restores the dignity of the victims and provides remedy and reparations for the harmed they suffered. Knowing the truth also breaks the bonds of impunity and it used to oppose blanket amnesty legislations that provide protect perpetrators of gross violations of international human rights law and serious violations of international humanitarian law . The right to know the truth often provides communities in transition to better understand the causes of the conflict.
Despite the lack of direct stipulation of the right to truth in any international instruments, it has roots in many of the treaty bodies and jurisprudence from the inter-American Court of Human Rights which often invokes it as a direct remedy. However in the case the of Khalilova v. Tajikistan , the Human Rights Committee invoke Article 7 of the ICCPR, they interpreted the right to know the truth, state party should avail information regarding the missing person and in case of death, they are under the obligation to show the place of burial (habeas Corpus) as remedy to the family of the missing person. States in transition have setup truth commission in an effort to implement the right to truth. The right to truth can take different forms such as public trials, prosecution, investigations, the disclosure of state documents and the proper management of archives, and by ensuring public access to information .
Restitution concern with the restoration of the victim to their original position before the gross violation of international human rights law, Article of ILC provides that for state wrong doing there should a remedy for the act as a responsibility. However, in International human rights law, restitution is more complex and difficult, it involves restoration of liberty, family life and nationality, identity, enjoyment of human rights, return to place of residence, return of property and restoration of employment . In some cases, states may offer administrative reparations where they acknowledged their responsibility for the wrongful acts and provides for blanket administrative reparation. However, states compensate those who suffered serious harm, for example, torture, death or arbitrary arrest and detention leaving majority of victims out .
The victims of gross violations have the right to be compensated for the lost they incurred, compensation for the direct lost that the victim have suffered. Article 20 of the guiding principle of reparations provides that, “victims should be compensated for any economically assessable damage, as appropriate proportional to the gravity of the violation and the circumstances ”. Although monetary compensations may not be enough, it may be symbolic act to which is significant to the victims especially the elderly who may not have a source of income and living on their pensions schemes. As Yael describes it that it is not about the money but the recognition by the state for the wrongful acts and an apology .
The forms of compensation for damages takes different forms, such as a result of mental or physical harm, lost opportunities like, employment , education and social benefits and some of the damages may require compensation for legal or expertise offered. However, states prefer monetary compensation as a better means of reparation for individual victims that have suffered harm.
Rehabilitation entails and mostly includes medical and psychosocial services and to some extent includes legal and social services . Although rehabilitation is made available, it is mostly for a short time. Victims of mass atrocities may need rehabilitations service for a long duration. The responsibility on the state is beyond reparation but rather a social responsibility for the state for victims . Legal aid is right for victims to seek redress in court for the harm suffered. It is therefore not all about monetary compensation but rather services repair emotional and moral breach of victims .
2.2.4 Guarantees of Non-repetition Satisfactions
The victims of gross human rights and serious humanitarian law violations have the right to be assured that, the mass killings, torture or displacement shall not happen again. This helps built confidence in the societies and communities and promote peaceful coexistence. Such reparations requires a broad structural modification or change, these includes, policy reforms targeting institutional development, especially civilian control over military and national security services, strengthening judicial reforms and independence, the promotion of human rights standards in public services, the protection of human rights defenders, freedom of the media and press, strengthening the rule of law institutions such as the police and prisons, improving the economy, psychosocial and social services . International law requires a more solid approach and obligations from the state to put its institution in order especially states in transition .
4. Eligibility for Reparations.
Having discussed the different forms of reparations and the rights of victims to remedy and reparations under international law, determining who is eligible for reparation provide a daunting question for many scholars. The questions who is eligible to get reparations, whether there is a mechanism in place to identify the victims that qualifies for reparation. These questions poised some dilemmas when dealing with victims of mass violations of human rights and serious international humanitarian law in transition period. According to the UN Basic principles on Reparation, it characterised victims to include, “[p]ersons, individually or collectively that suffered harm, including physical or mental injury, emotional suffering and economic loss or substantial impairment of their fundamental rights cause by acts or omissions that constitute violations of international human rights law” and it categorically mention that in domestic law, victims may also include “immediate family and dependents of the victim and person who suffered harm while intervening to assist victims in distress or to prevent victimization”.
Such definition is too general and broad, because during conflict almost anyone would suffer in one way the other. The large number of victims after armed conflicts can be in the figures of hundreds of thousands or even million in stringent conflicts , such huge number to pay compensation is very difficult. However, in order to mitigate such challenges, states tend to focus on victims of serious harmful violations of individuals or groups, in particular violations relating to International Covenant on Civil and Political Rights such as, torture, rape and other sexual offences, enforce disappearances and extra-judicial killings.
The selectivity leave victims who suffered violations of the rights related to the Economic, Social and Cultural without remedies . Despites such dilemmas poised by the magnitude and the number of victims of gross violation international human rights law, it is important to design reparations programs that can benefit all victims of massive violations of international human rights law. Nevertheless, there some notable examples of countries that have developed comprehensive community reparations programs that provide redress to those marginalised by states during past reparation programs and they include Morocco and Peru.
Inasmuch as, truth commission like to provide reparations to victims of human rights violations, many have prioritise victims who are eligible to receive reparations, for example in Timor Leste and Serra Leone, the truth commission limited in their recommendations, state that reparations can be paid to only particular group or individuals who suffered the gross and serious injuries, that include, orphans, victims of torture and sexual violence . Such limitations were similarly implemented by Peru, According to Christian, they periotise individuals’ reparations for elderly victims due to their vulnerability and age which is limited and hence given priority .
Although it can be argued that the prioritising of eligibility of victims to ensure proper and make it more essay to implement, it is however to the contrary a difficult task to accomplish. This is due to the limited resources and the complex scenario of handling mass number of victims of human rights violations. Actually the UN Basic Principles on Reparations recognises such difficulties; it limits reparations to only victims of gross violations of international human rights law and serious humanitarian law like torture, sexual violence, extrajudicial killings and arbitrary arrest and war crimes.
5. Who is responsible of Reparations?
The question of who is responsible to make reparations available to victims of gross violation of human rights may seem simple however it offers some dilemmas under international law. While the primary responsibility for reparations lies with the state that committed wrongful acts against its national or the national of the states, however states are often faced with acute shortage of resources to compensate massive number of victims who may be in their hundreds of thousands. It is argued that responsibility acknowledging the wrong committed against victims symbolizes the actors’ responsibility.
At times compensation are paid by international community or donors, can it formed as part of the state reparation, as many may disagree that it cannot part of the state reparations, however Article 2 of International Covenant on Economic, Social and Cultural (ICESCR), states are under the duty to fully realise the rights stated in the Covenant “individually and through international assistance and co-operation” this may imply that, in developing state may seek international assistance. In the past, most violations were committed between states as most of the conflicts were between states; the ILC draft articles impose obligations on the states for wrongful acts .
With the development of non-international armed conflicts, armed groups and non- state actors are committing massive violations of international law, the question is however, whether they are responsible for the wrongful acts and are under obligations to pay compensations in terms of reparations to victims? The state centred reparations may be ineffective to handle the complex situation. The UN Basic Principle and the Nairobi Declarations however asserts that any legal person responsible for gross violations shall bear the responsibility to make reparations to the victims as a matter of countering impunity; all actors involved must bear the responsibility .
In contrast to the ILC draft articles, it can be argued that all actors should bear the responsibility. For instance in Columbia and Guatemala reparations were order against paramilitaries and local defense forces for the gross violations they committed. While in Rio Negro massacre, the World Bank has to make some reparations for the victims . Therefore, it can be concluded that, the state centric mechanism for reparations is inadequate to manage complex reparations issues.
Although the ILC and UN Basic Principle imposed responsibility on states for gross human rights violation offer reparations to victims for the wrongful act committed by the states, however the victims’ right to remedy and reparation is yet to develop as coherent norm of international human rights law . This undermines victims to claim their rights to be directly enforced by the human rights mechanism and the regional systems.
Reparations sometimes are misconceived by states as only monetary compensations, for instance, President Mbeki of South Africa stated that victims pursuits for reparations is motivated by the greed for money (individual) rather than economic development of the country (collective) , however Yael asserted that monetary compensation is just “symbolic” and hence signifies sympathy and acceptance by states for the harm suffered and also acknowledgement for that the state bears the responsibility for harm .
The truth is that no amounts of coin will compensate for the death of a family member or those who are amputated. While international human rights law deals mostly with individual rights, the large number of victims of gross violations poise some challenge with regards to the implementation of the victim’s rights to remedy and reparations, therefore some truth commission recommended for collective reparations which is questionable in terms of whether it is reparations in itself. Therefore, although the UN Basic Principles on Reparation and ILC provides some legal framework to victim’s rights to remedy and reparations however there is need to have an international legal instrument that will reinforce the two documents and stamp the authority of victims’ right to remedy and reparation.
This is a very good contribution and thank you very much for sharing it. I will be very grateful if you could do the following:
1. Alter the nature of the piece slight from an academic piece to one for lay readers. So, you do not need references, and the structure could be very simple: clarifying the concepts, the evolution of the concepts, the challenges and contextualizing these concepts to South Sudan through the ACRSS. In addition, please write simply sentences.
2. Please reduce the number of words to a maximum of 2000 words.
3. Please make recommendations based on this beautiful analysis as to how the revitalisation should approach the justice and accountability chapter.
4. When you mention a treaty please provide a short background information about it non-lawyers.
5. I have not done language check. I will do that on the final draft.
International Legal Instruments
o Draft articles on Responsibility of States for Internationally Wrongful Acts.
o United Nations General Assembly Resolution 60/147, 16 December 2005
o International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976, in accordance with Article 49, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx
o UN Human Rights Committee, General Comment 31 adopted 29 March 2004; (UN doc. HRI/GEN/1/Rev,8 233-238)
o 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, Adopted and proclaimed by General Assembly resolution 60/147 of 16 December 2005, http://www.ohchr.org/EN/ProfessionalInterest/Pages/RemedyAndReparation.aspx
o Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. https://www.icrc.org/ihl/INTRO/470
o International Convention for the Protection of All Persons from Enforced Disappearance http://www.ohchr.org/EN/HRBodies/CED/Pages/ConventionCED.aspx
Table of Cases
o Khalilova v. Tajikistan case, Communication No. 973/2001, UN Doc. CCPR/C/83/D/973/2001; and Views adopted on 16 November 2005,
o Valichon Aliboev v.Tajikistan case, Communication No. 985/2001, UN Doc. CCPR/C/85/D/985/2001
o Rio Negro Massacres v Guatemala, preliminary Objection, Merits, Reparations and Cost of Judgment, 4 September 2012, (IACtHR) Series C No. 250
Books and Journal Articles
o Antonio Augusto Cancado-Trindade, “The Access of Individuals to International Justice”, (Oxford University Press 2011), Recognized in international Law in Legal Consequences of the Construction a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports (2004) 136, Para 151-3 Arturo J. Carrilo, “Justice in Context”: The relevance of Inter-American Human Rights Law and Practice to Repairing the Past, in de Geiff.
o B, Hamber. “The Dilemmas of Reparations”: Insearch of a process-driven approach, in K. De Feyter, S. Permnetier, M. Bossuyt and P. Lemmens (eds.), Out of Ashes: Reparation for Victims of Gross and Systematic Human Rights Violations (Intersentia 2005).
o C, Christian, “Reparations in Peru”: From Recommendations to Implementation, ICTJ, June 2016
o De Greiff, P., “Justice and Reparations” in P. Greiff, eds. The Handbook of Reparations; (Oxford University Press 2006).
o E. Yamamoto & E. Liann, “Report on Redress the Japanese American Internment” in de Grieff, (Oxford University Press 2006).
o F. Richard, “Reparations, International Law and Global Justice” in De, Greiff ed. (Oxford University Press 2006).
o Linda A. Taylor “The United Nations Compensation Commission” in Ferstman, (Martinus Nijhoff Publishers 2009)
o N. Yasmin “The right to the truth in international law”: fact or fiction? (International Review of the Red Cross) Vol. 88.No.862, June 2006.
o R, Rebecca, “Transitional Justice in Peru”, (Palgrave MacMillan 2012)
o Ruti, T,. “Transitional Justice” (Oxford University Press 2002)
o Theo, B. “Victims’ Rights to a Remedy and Reparation”: The New United Nation Principles and Guidelines, in Ferstman, C., Goetz., M and Stephens, A., eds. Reparation for Victims of Genocide, War Crimes and Crimes against Humanity: System in Place and System in the Making. (Martinus Nijhoff Publishers 2009).
o Y.Danieli, “Massive Trauma and the Healing Role of Reparative Justice” in P, C. Ferstman, M. Gortz and A. Stephens ed (Martinus Nijhoff Publishers 2009).
o Amnesty International “Truth, justice and reparation Establishing an effective truth commission” 11 June 2007 AI Index: POL 30/009/2007 at 7. file:///C:/Users/hp/Downloads/pol300092007en.pdf
o A, Buyse “Lost and Regained?” Restitution as a Remedy for Human Rights Violations in the Context of International Law, ZaöRV 68 (2008), at p.130 http://www.zaoerv.de/68_2008/68_2008_1_a_128_154.pdf
o L. Waldorf, “Anticipating the Past”: Transitional Justice and Socio-Economic Wrongs, Social and Legal Rights (Sage Journal 2012) available @, http://sls.sagepub.com/content/early/2012/04/26/0964663911435827.full.pdf+html first published on June 05, 2012
Reports and Publications:
o Diane Orentlicher “Report of the independent expert to update the set of principle to combat impunity”, UN doc.E/CN.4/2005/102.
o Report of Timor Leste, “Truth and Reconciliation Commission”. Vol. II, Chapter 4.