Issue Two

Individual and Collective Reparations in Remedying International Crime

Individual and Collective Reparations in Remedying International Crime: Can they be effective?

 

 

 Author:

Aaron Murchan

 

Queen’s University Belfast

 

 

 

 –

 

 

Abstract

Reparations aim, at their very basis, to return a victim to the position they were in prior to a wrong being committed against them. They are not only a feature of international law but rather find their origins in moral human instinct, to correct a wrong that has been committed. Yet, reparations and the extent of their effectiveness are subject to much debate.

This article critiques the extent to which reparations play a key role in international law through assessing reparations programs in a number of different settings, gaining an insight into the most effective forms of reparations in a post-conflict setting. Drawing on extensive research the article analyses both positive and negative effects of implementation of individual and collective reparations through in depth scrutiny. The effectiveness of reparations is not just a matter of individual or collective, as the article goes on to address other factors such as the debate over moral or monetary/material reparations and the process of implementing a reparations program.

Having taken all in to consideration, it is concluded that reparations can be majorly effective in redressing grievances if they are implemented correctly and should be viewed as tools for building a better future in addition to being tools of recovery.

 

Introduction

In a post-conflict scenario many may wonder why reparations should be paid as not only are they a hugely expensive and time-consuming feat when redressing international crimes, but they also drain resources from a state that is attempting to rebuild in the wake of war. But reparations must be paid not only in the material sense that they may enrich a victim but arguably more importantly in the moral sense, that they are a demonstration of remorse and regret for the pain that has been caused. Reparations are one half of what constitutes true justice, the other half being punishment of wrongdoers. “The essence of justice is the redistribution of gains earned through the perpetration of justice.”[1] Amos Wilson’s commentary here on the fight for reparations for African-American slaves in the US is not only confined to the borders of the US, but is relevant in an international setting, applying to reparations in general.

It is an inbuilt core human right that those who suffer a wrong done unto them are entitled to correct, effective and appropriate reparations and redress.[2] Due to the growth of organisations within the international community such as the United Nations, human rights courts like the International Criminal Court (ICC) and NGO’s such as Redress, reparations have been brought to the forefront of discussion in a post-conflict scenario. Further progress has led to the creation of what Redress calls an ‘international bill of rights for victims’ in the form of the 2005 UN Basic Principles and Guidelines on the Right to Remedy and Reparation.[3] This outlines five different types of reparations: compensation, restitution, rehabilitation, measures of satisfaction and guarantees of non-repetition. The effectiveness of reparations has often been the focus of debate as at their core they aim to restore a person to the situation in which they were in prior to their suffering. However, if the victim has suffered serious and gross violation of their human rights, then to restore them to the position they were previously in is “something that is impossible to do”[4] or even if they are returned to the position they were in, they may be returned to a position of inequality and remain as a discriminated minority.[5]  A better way of defining reparations is to look at their core goal and how they are most effective, Brophy is correct in stating that “at base each reparations program has the goal of building something better for the future by correcting for past injustice.”[6] Victims, individual reparations, collective reparations, moral and monetary/material reparations, and who has the responsibility of implementing reparations are the key factors that must be analysed so as to identify how reparations may be most effective.

 

Victims

The first hurdle that must be passed in ensuring that reparations are effective is providing an accurate and precise definition of who exactly qualifies as a victim entitled to the benefits of the reparations. The UN states that victim “means persons who, individually or collectively, have suffered harm.”[7] The victim that is entitled to individual reparations is one that has suffered a personal injustice, whereas the collective victims are those that have suffered as a group of people or a community. Problems with defining victims arise when addressing the issue of reparations for complex victims. This issue was highlighted in the European Court of Human Rights case McCann v UK[8] in which the victims were 3 members of the paramilitary group the PIRA, thus calling into question not whether they can be considered as victims, but rather should they be considered as victims. In Northern Ireland the issue once again reared its head when it was recommended that victims, members of the security forces and members of paramilitaries who died in the ‘Troubles’ received a payment of £12,000 per victim.[9] This proposal was met with fierce opposition, causing outrage amongst victims’ families and politicians alike, as it was condemned as “disappointing and disturbing.”[10] No conflict is the same and it is therefore nonsensical to assume that every victim is the same, thus in determining who is entitled to reparations, victims must be defined on a case-by-case basis in order to ensure that they receive the most effective reparations that are available to them.

 

Individual Reparations

Individual reparations remedy the harm done to a specific person usually taking the form of restitution or compensation. Individual reparations aim to “serve as recognition of specific harm to an individual, and of an individual’s worth as a rights-bearing citizen.”[11] Payment of individual reparations ensures that the victim feels a sense of personal justice as their own personal grievances have been examined and addressed individually.

The Inter-American Court of Human Rights case of Loayza Tamayo v Peru[12] provides an example of reparations to an individual as the court not only ordered restoration of Tamayo’s liberty but also her former job and salary until she was able to re-join teaching. Despite the success in this case, pursuing individual reparations through the courts is rarely effective and often an incomplete, slow and challenging way of dealing with individual reparations on a large scale. Individual compensation schemes attempt to compensate victims for their suffering and are usually ordered in conjunction with other individual or collective measures. A compensation scheme was set up for those that were in slave labour during the Holocaust, providing a lump sum payment of 15,000 Deutschmarks to each victim.[13] There was very little differentiation in compensation between victims in this case in order to avoid the creation of a hierarchy amongst the victims as is often the case when individual reparations are involved. On some instances when unequal or no reparations are provided, some victims are left feeling that their suffering has gone unrecognised. In South Africa some of those that did not receive Urgent Interim Reparations (UIR) became “jealous or mad,” and “sometimes threatened violence.”[14] It is a harsh reality though, that individual reparations programs in the wake of conflict on a massive scale are always going to be seen as insufficient and do not cover all victims due to their personal nature requiring the analysis of every single case. Thus there is a need for collective reparations in conjunction with the individual in order to ensure that all victims are redressed accordingly.

 

Collective Reparations

The term ‘collective reparations’ is ambiguous in that it has no clear definition of who exactly qualifies as the ‘collective.’ Nonetheless, it is clear that collective reparations aim to address and aid in the undoing of ‘collective harm.’[15] A basic understanding of collective reparations and collective harm is to assume that when the “harm is defined in terms of an attempt to destroy a group, so that reparation should be similarly defined.”[16] As a result of this, collective reparations reach a wide range of victims bypassing the issues such as hierarchy, funding and efficiency faced by individual reparations. Collective reparations tend to focus more on the moral aspect of reparations through rehabilitation, measures of satisfaction and guarantees of non-repetition, although they can also address the material aspect as well. In Guatemala following the Plan de Sanchez massacre and the subsequent case of Plan de Sachez v Guatemala,[17] the rehabilitation programme that was implemented provided the surviving community with healthcare benefits, housing and development programmes, education and better infrastructure in the town allowing for the rebuilding of the community as a collective. In order to be fully effective collective reparations must not only redress a collective’s grievances but also have some form of impact on individual members within the group so that they may feel some benefit from the measures.

Collective reparations have been criticised for being overtly impersonal as they tend to overlook the personal suffering of some individuals.[18] Collective development reparations such as the construction of healthcare centres and education facilities also carry with them a risk that the perpetrators may benefit from the reparations in addition to the victims.[19] This would result in the value of the collective reparations being belittled, as was the worry in Rwanda where the Hutu and the Tutsi lived intertwined in the same communities.  Nevertheless some governments in developing countries, such as that of South Africa and Peru, have argued that development is equal to reparation as they are working to build a better future for victims.[20] Likewise, to equate collective reparations with local development in a developing country may actually be beneficial as it “avoids the dilemma of choosing between reparations, and equally pressing priorities.”[21] Providing collective reparations to a group and expecting to redress all victims is an impossible reality as there will always be those who have suffered that are left feeling marginalised and forgotten about. To further this point it is worth noting that an individual within the collective may not actually receive any particular benefit from collective reparations as the benefit may not reach them or they will not be affected personally and thus the reparations are essentially useless to them. Therefore it is clear that to have effective reparations there must be a combination of both collective and individual measures implemented.

 

Moral and Monetary/Material Reparations

Perhaps the more important issue in addressing the effectiveness of reparations is the effect that monetary/material reparations have as opposed to moral, and vice versa. Moral reparations are those that have more of a symbolic meaning, such as an apology or the construction of a monument, whereas material reparations include reparations payments or development of infrastructure. It is rare that material reparations will significantly or effectively impact a person’s life in the wake of a large scale conflict as resources will be strained. In addition to this in Chile, Argentina, Brazil and Northern Ireland some victims have felt that compensation is a form of blood money and not adequate redress. This is particularly prevalent when the victims feel that the compensation is being used to “buy their silence in the absence of truth and justice.”[22] Though some victims simply see monetary reparation as recognition by the state of the harm they have caused. Whether victims accept compensation as reparation or not, the majority view is that compensation is never enough or even the most important aspect of reparations.[23] Thus in some situations monetary reparations almost leave behind their material element and act as a symbolic apology mechanism, taking on a more effective moral role. It is of the utmost importance though, in all situations, when dealing with material reparations that they have “some symbolic accompaniment to give them meaning.”[24]

Moral reparations range from an apology or the establishment of a memorial for victims to the locating of persons that have disappeared throughout the conflict. According to Evans, “Many victims stress the importance of apologies, public recognition of state responsibility and psychosocial assistance as their key priorities regarding reparations.”[25] These apologies and public recognitions of wrongdoing are so important to victims because they often take years to achieve. It took 38 years for the British government to apologise for the killings of 14 innocent civilians by the army on ‘Bloody Sunday’; until in 2010 David Cameron issued a formal state apology for the “unjustified and unjustifiable killings.”[26]  Moreover, measures of satisfaction such as ‘The Eye that Cries’ memorial in Peru, built to honour the victims of the armed conflict in the country, are used to ensure that there is a lasting memory of those that died promoting peace and reconciliation in the country. A comparative study of truth commissions carried out by the Chilean Human Rights organisation CODEPU found that “While social reparations such as health and education have been seen as insufficient, they are more appreciated. Moral and symbolic reparations are most significant.”[27]

Although it seems that moral reparations are very much the most effective way to deal with reparations, it is not always this simple and of course a material element is required. Moral reparations can be interpreted as empty and useless, used to avoid compensation and other forms of reparations. Former Prime Minister Tony Blair came under fire from some commentators for his apology for Britain’s role in the slave trade, with Esther Stanford of the Pan African Reparation coalition stating “an apology is just the start – words mean nothing.”[28] This pinpoints moral reparation’s key weakness: they often mean little without a material element. Thus to provide the most effective form of reparations possible a balance must be struck between moral and monetary/material reparations, as giving both an apology and a material benefit is much more effective in the healing process of a victim than just one or the other; unless there are concrete material solutions for harm suffered, reparations will never be taken seriously.[29]

 

Responsibility for Implementation of Reparations

Implementation is a crucial part of a reparations program. Programs must be implemented by responsible bodies as dealing with victims in a post conflict society is delicate and reparations programs contentious, as they are often surrounded by “very low levels of trust and a scarcity of financial resources.”[30] Reparations to victims are not just an issue for the state involved to implement but also one for the international community to address as prior to the advances of Human Rights and development of the international community the law was one of coexistence as opposed to one of cooperation and the dominant view was that wrongs committed by a state against its own nationals “were essentially a domestic matter.”[31] States are now expected to provide remedial means to their victims or otherwise face pressure and criticism, not only from within their own borders but also from the international community. The responsibility of implementing reparations at its core should lie with the state as they have a responsibility to “ensure the enjoyment of human rights by all the citizens within their borders.”[32]

The classic model of reparations implementation, sometimes referred to as the ‘German model’, was developed in Germany after World War II and includes both individual and collective reparations implemented through a combination of numerous state bodies and legislation. This laid the foundations for the model of other administrative reparations programs, such as that of Argentina where numerous laws were passed to implement reparations and a commission was formed to investigate those who were ‘disappeared’ under the former military government, with their findings published in a report.[33] The Argentinian government then went on to implement a series of laws and reparations measures on an ever-increasing scope over a number of years.[34]

There seems to be a growing trend amongst post-conflict States towards establishing truth commissions tasked with analysing the situation and giving a number of recommendations as to what reparations measures should be implemented. These truth commissions are not always listened to and their proposals not always implemented as their recommendations are most often not binding measures. This was demonstrated in South Africa where, despite having a new democratically elected government in power there was still a lackadaisical attitude when implementing reparations. The Truth and Reconciliation Commission originally proposed a payment plan of $3,500 per year to victims spanning 6 years, but the government reacted slowly and eventually in 2003 only proposed a one-off payment of around $3,500 to each victim.[35] Due to often being little more than a body of recommendations, truth commissions should not be relied upon solely in developing reparations, instead they should be used as a tool to discuss reparations within a larger framework of implementation.

Reparations must be implemented strictly and through a body with no bias. The manner in which reparations are implemented should be determined through a strict timeline and detailed plan. Without strict implementation there may be uncertainties as to what reparations are owed, as was the case recently when Greece claimed that Germany owed them €279 billion in reparation payments, despite the war ending 70 years ago.[36] In order to ensure that the reparations are implemented totally and effectively they should be administered by a third body within the international community established solely to deal with reparations. No such body exists as of yet, although trust funds have been established in order to accommodate for payment of reparations through certain bodies such as the International Criminal Court (ICC).[37]

 

Conclusion

There is no ‘one fits all’ reparations model that is most effective but reparations can and have been effective as demonstrated above. Reparations are most effective if implemented by an unbiased third body under strict conditions involving individual and collective elements and balancing both the moral and monetary/material aspects. Yet, no matter how effective reparations are some victims that have suffered grievous harms will never feel reparations are effective, “even the most generous program will fall short if the expectation is to repair all harm.”[38] Thus, the effectiveness of reparations should not be measured by the extent to which they restore a victim to their original position, rather reparations should have as their quintessential purpose to bestow a benefit upon a victim as a moral apology, and to effectively aid in the recovery process to help build a better future.

 

 

 

 

 

 

 


[1] Amos Wilson, Blue Print for Black Power (Afrikan WorldInfo Systems, 1998) page 92.

[2] Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 8.

[3] Redress, ‘Collective Reparations: Concepts and Principles’ (2010) page 1. http://www.redress.org/downloads/events/CollectiveReparationsMG.pdf  accessed 15 May 2015.

[4] Naomi Roht-Arriaza, ‘Reparations Decisions and Dilemmas’ (2004) 27 Hastings Int’l & Comp. L. Rev. 157, 158.

[5] Luke Moffett, Justice for Victims before the International Criminal Court (Routledge, 2014) page 144.

[6] Alfred L. Brophy, Reparations Pro and Con (OUP, 2006) page 7.

[7]  General Assembly resolution 40/34, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, A/RES/40/34 (20 November 1985), available from http://www.un.org/documents/ga/res/40/a40r034.htm

[8] (1995) 21 EHRR 97

[9] Jenny Leigh McWilliams and Jordan Hawthorne, ‘Individual and Collective Reparations’ (Remedying the Past) http://blogs.qub.ac.uk/remedy/reparation-issues/individual-and-collective-reparations/ accessed 12 May 2015.

[10] BBC News, ‘Troubles victims’ payment planned’ (23 January 2009) http://news.bbc.co.uk/1/hi/northern_ireland/7847479.stm accessed 13 May 2015.

[11] Naomi Roht-arriaza and Katharine Orlovsky, ‘A Complementary Relationship: Reparations and Development’ (2009) ICTJ Research Brief, 3 https://www.ictj.org/sites/default/files/ICTJ-Development-Reparations-ResearchBrief-2009-English.pdf accessed 10 May 2015.

[12] Reparations, Series C No. 43 (IACtHR, 27 November 1998).

[13] Michael J. Bazyler and Roger P. Alford, Holocaust Restitution: Perspectives on the Litigation and its Legacy (NYU Press, 2006) page 191.

[14] Pablo de Greiff, The Handbook of Reparations (OUP, 2006) page 189.

[15] Friedrich Rosenfeld, ‘Collective Reparation for Victims of Armed Conflict’ (2010) 92 International Review of the Red Cross 879, 734.

[16] Roht-Arriaza (n 4) 181.

[17] Series C. No. 105 (IACtHR, 29 April 2004).

[18] Roht-Arriaza and Orlovsky (n 11) 3.

[19] The Rabat Report, ‘The Concept and Challenges of Collective Reparations’ (2009) ICTJ Report, para 1.1.

[20] Office of the United Nation’s High Commissioner for Human Rights, Rule of Law Tools for Post-Conflict States: Reparations Programmes (New York and Geneva, 2008), available from http://www.ohchr.org/Documents/Publications/ReparationsProgrammes.pdf

[21] Roht-Arriaza (n 4) 187.

[22] Brandon Hamber, Transforming Societies After Political Violence: Truth, Reconciliation and Mental Health (Springer Science & Business Media, 2009) page 109.

[23] Roht-Arriaza (n 4) 180.

[24] Lisa Magarell, ‘Reparations in Theory and Practice’ [2007] ICTJ Reparative Justice Series, page 5.

[25] Christine Evans, The Right to Reparation in International Law for Victims of Armed Conflict (Cambridge University Press, 2012) page 160.

[26] Henry McDonald, Owen Bowcott and Helene Mullholland, ‘Bloody Sunday Report: David Cameron apologises for ‘unjustifiable’ shootings’ The Guardian (15 June 2010) http://www.theguardian.com/uk/2010/jun/15/bloody-sunday-report-saville-inquiry accessed 14 May 2015.

[27] Victor Espinoza Cuevas et al (CODEPU), ‘Truth Commissions: An Uncertain Path? Comparative study of truth commissions in Argentina, Chile, El Salvador, Guatemala and South Africa form the perspectives of victims, their relatives, human rights organisations and experts’ (2002) page 37. http://www.apt.ch/content/files_res/Truth%20Comm_Executive%20Summary.pdf accessed 14 May 2015.

[28] BBC News, ‘Blair ‘sorrow ‘over slave trade’ (27 November 2006)  http://news.bbc.co.uk/1/hi/6185176.stm  accessed 12 May 2015.

[29] Magarell (n 24) 4.

[30] Rabat Report (n 19) 10.

[31] Rabat Report (n 19) 5.

[32] Magarell (n 24) 10.

[33] Argentine National Commission on the Disappearance of Persons, Nunca Mas: The Report of the Argentine National Commission on the Disappeared (Farrar, Strauss & Giroux, 1986).

[34] Roht-Arriaza (n 4) 171.

[35] Ibid. 174.

[36] BBC News, ‘Greece Nazi Occupation: Athens asks Germany for €279bn’ (7 April 2015)  http://www.bbc.co.uk/news/world-europe-32202768  accessed 12 May 2015.

[37] UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6 http://www.refworld.org/docid/3ae6b3a84.html accessed 16 May 2015.

[38] Magarell (n 24) 4.

Leave a Reply

Your email address will not be published.