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Home EJIL Analysis The Limits of the Law: Putting Reparations into Practice

The Limits of the Law: Putting Reparations into Practice

Published on July 2, 2019        Author: , , and
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Reparations have recently been the hot topic from its invocation at the US Congress, the Khashoggi killing to WWII claims by Poland and Greece against Germany. Reparations have a particular legal meaning that intends to acknowledge wrongdoing and remedy as far as possible victims’ harm. Private law notions of restitution heavily imbue the concept. Indeed, the seminal case of Chorzów Factory by the Permanent Court of Justice laid the foundations for reparation in international law which ‘must, as far, as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.’

In the past three decades we have seen an increase in reparation programmes from the German Compensation Scheme for Forced Labour, the UN Claims Commission, domestic reparation programmes such as Peru to jurisprudential strides of the Inter-American Court of Human Rights and the initial steps by the International Criminal Court. 2020 itself will mark fifteen years since the UN adoption of the Basic Principles for the Right to Remedy and Reparations for Gross Violations of Human Rights and Serious Breaches of International Humanitarian Law that sets the broad international standards for victims and states.

Despite these developments most victims of such violations do not receive reparations. While states are increasingly being brought before international and regional bodies to fulfil their duties and satisfy victims’ rights, they have often struggled or been reluctant to implement their international obligations. Moreover, these are not simply private, individual claims. Rather, reparations are often required to respond to multiple forms of violations and significant numbers of victims. Indeed, $29 billion has been marked for over 8.8 million victims through the Unit for Comprehensive Reparation and Care of Victims in Colombia. Global trends of violence, while overall decreasing, face a progressively decentralising and weakening state control, globalisation of responsible actors, and transnational victimisation, which traditional principles and international law struggle to grasp. While international law is primarily aimed at states, non-state actors, including, NSAGs, donors and civil society, as outlined here, play an increasingly important and central role that needs to be better understood and engaged with.

Since October 2017 we have been conducting research and fieldwork in a range of post-conflict transitional societies, which have or are currently grappling with the legal, political and social challenges associated with making reparations after protracted periods of conflict and mass victimisation. Those countries include Colombia, Guatemala, Nepal, Northern Ireland, Peru, South Sudan and Uganda. In early June 2019 we held a series of workshops in Geneva in coordination with the International Organisation for Migration, the Office of the High Commissioner for Human Rights and the Geneva Academy. The objective of these workshops was to contribute to creation of two international facing handbooks we will publish in 2020 – one on reparations and non-state armed groups and another on the role of donors and civil society in implementing reparations. As such, this blog outlines some preliminary findings and suggestions of how to close the gap between international legal obligations and victim experience on the ground in what to expect of domestic reparation programmes. We outline three key actors that can improve the delivery and experience of reparations: non-state armed groups; civil society; and donors.

Non-State Armed Groups

While at first glance it may seem counterintuitive to suggest that non-state armed groups can make reparations, we come at this argument from three directions. First, we have a firm practical commitment to seeing ex-combatants as a potential resource in peace-making work, rather than simply as a security challenge to be managed. Second, while the UN Basic Principles on the Right to Remedy and Reparations are mainly aimed at states, there is increased recognition that some non-state armed groups can be bound by certain human rights obligations alongside their existing commitments under international humanitarian law for non-international armed conflicts. Third is our first hand experience of engaging with non-state armed groups who are actively making reparations, through for example, involvement in reparation schemes, the issuing of apologies and statements of acknowledgement, truth telling and in the recovery of the remains of those disappeared during periods of conflict.

Non-state armed groups can provide reparations to three key constituencies: the civilian population; their own members; and other armed organisations. While space permits an exhaustive examination of the relationship between armed groups, these potential recipients, and reparations, our fieldwork has demonstrated three common themes which may facilitate the involvement of non-state armed groups in the delivery and reception of reparations.  Each of course requires political and moral will and legal imagination.

First, it is essential to understand the ideology and politics of the armed group and their self-imagination. This understanding can provide a political and moral framework against which non-state armed groups can engage in making reparations that both brings their own constituency with them and should help to ensure that the reparations offered are feasible, realisable, and sincere. The ‘embarrassment’ on the part of the IRA at its role in disappearances and the wider republican movement’s objective of demonstrating commitment to political means has, for example, been influential in the IRA’s involvement in the search of the remains of the disappeared during the Northern Ireland conflict. If a group has its own code of conduct, those rules may also provide a template against which reparations can be made.

Second, non-state armed groups can be encouraged to think of reparations as form of responsibility whereby ownership of past actions is taken, harm is acknowledged, and a commitment to non-repetition is made. Such ‘good faith’ efforts may aid reintegration and rehumanisation of members of the non-state armed groups. Third is the need for ‘messy bargaining’. Bringing non-state armed groups into reparations schemes requires a pragmatic assessment regarding which groups can be engaged with, and a non-prescriptive and context specific approach, such as the Special Jurisdiction for Peace (JEP) in Colombia.  Equally, engagement by a non-state armed group with a victimised community will be essential prior to making reparations. In the case of making ‘legitimate apologies’, it may for example be necessary to consider how, when, and by whom an apology should be delivered – which can only be done in consultation with those to whom the apology is directed.

Civil Society and Donors

Civil society has an instrumental role in facilitating reparations, which includes, but are not limited to: documentation, accompaniment, service provision, and monitoring, which may be from the initial stage of legal or policy making through to implementation. To demonstrate, Colombia’s Bill of Assistance to Victims of Sexual Assault of Armed Conflict (Law 1719/2014) contained a clause that would make the previous mandatory Ministry of Health’s Protocol of Medical Assistance to Victims of Sexual Violence optional. This would have permitted healthcare professionals to choose whether or not to offer victims comprehensive medical treatment or provide information to them about their health rights, limiting its scope and enabling discriminatory practice at a time when the protocol was being applied with some difficulty. In response five human rights and women’s rights organisations appealed to the Constitutional Court, which reinstated the protocol to mandatory. Accordingly, civil society can help prevent oversights in legislation that would prejudice victim eligibility to reparations.

In terms of donors, cost, legal connotations and political priorities are often barriers to engaging on reparations. Thus they are frequently instrumental in supporting civil society organisations’ responses to some of the most debilitating consequences of conflict, often in a timelier manner that reduces long-term health impacts and alleviates burdens of reparation programmes that come later. For instance, the ACQUIRE project, funded by USAID, brought together experts from 12 African countries in 2005 to share learning experiences, identify challenges, and devise country-specific strategies on combating traumatic gynaecological fistula from conflict-related sexual violence. An example where fistula management materialised with donor support is the collaboration between Mercy Ships International and Fistula Care. As in many donor-funded programmes, this initiative relies on an inter-agency approach that partners with community-based organisations to identify potential fistulae cases that would benefit from surgery, and to train surgeons.

Donors can have an important role in supporting reparations. Their support does not necessarily need to translate to direct funding of reparation programmes, but can also include interim assistance, support for civil society to enable victims to participate, and capacity building. The latter occurred in the Sierra Leone Reparations Programme (SLRP), which received technical assistance and administrative oversight from the International Organisation for Migration (IOM). As such, there are clear synergies between the contribution of civil society and donors, which can fill some of the gaps that states struggling to recover from conflict may not be able to address by themselves.

Conclusion

Reparations cannot completely remedy all the harm or consequence caused by gross violations. However, such measures play an important part in signalling the return to common values and to the rule of law. Despite the increasing attention to reparations by different non-state actors, they can pursue their own subjective and diverging agendas that can conflict. Given the constructive ambiguity of the UN Basic Principles on Reparations, which for measures such as rehabilitation only includes one line, it can create a fuzzy boundary between reparations and assistance/development. In the face of an unwilling or unable state, civil society and donors may step in to fill the gap, but does that make the recovery of the disappeared such as by the ICRC, FAFG and CAFCA in Guatemala or health services to victims of sexual violence, reparations when it is not coming from a responsible actor?

The difficulty of such efforts is that such non-state organisations lack the ability to provide complete national programmes, long-term support or are dependent on funding priorities. The widening discourse of reparations to respond to all violations, is problematic as it is increasingly being used to ‘brand’ assistance and development as have a ‘reparative effect’ in that they meet some of victims’ needs, but risks diluting victims’ rights and states’ obligations. At the heart of these issues is the place and practicality of international legal obligations on reparations in the face of gross violations of human rights and serious breaches of international humanitarian law.

Accordingly we need to rethink the scope and implementation of legal obligations for reparations for such violations. While international law and the growing jurisprudence can put some pressure on states to implement broader reparations programmes, we found that it practice this often failed to translate to political will to ensure victims receive some form of remedy beyond individual cases or prioritised groups. In addition, states repeatedly neglect structural violence that continues to put many victims at risk to further violations, despite peace agreements and political transitions. This is not to say that international law on reparations has no place, but that greater attention and effort has to be placed on states and other actors to effective implement reparations for victims. International and domestic law on reparations has at its heart is a moral and political commitment to remedy the consequences of such violations. A better way to reconnect with such shared values and a range of actors to more effectively implement reparations, by developing more clarity and monitoring of implementation of secondary obligations to make reparations for such gross violations.

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5 Responses

  1. Thank you for a thought-provoking post and v much looking forward to the publication of the two handbooks. Just to add a couple of remarks on the usage and understanding of the term ‘reparations’. You note the downside of the term being used to brand assistance or development programmes which potentially dilutes its proper application to victims’ rights and state obligations. This is not a mistake made by leading defence and military organisations where the term is avoided in cases of civilian casualties precisely because of its connotation of legal liability and the trend has been towards ex gratia or ‘condolence’ payments which reject any recognition of responsibility to pay compensation.

    At the same time, the concept of reparation has a much wider application than that envisaged in the UN Basic Principles on the Right to a Remedy and Reparations. You refer to the UN Claims Commission, established to process claims and pay compensation related to Iraq’s invasion and occupation of Kuwait. Its record is illustrative. While individual claims made up over 99 per cent of the number of claims made and awarded, approx. USD 40 billion of the 52 billion awarded has gone to corporations, other private and public entities, governments and IGOs.

    Which makes the point that the task of realizing the UN Basic Principles involves both holding true to the notion of reparations as an entitlement for those wronged, but also pioneering its widespread implementation in cases of IHL/human rights violations in an international context where reparations to states and corporations have predominated.

  2. Luis F. Viveros

    Dear All

    With all due respect for a provoking post. But I would like to ask if by mixing secondary obligations in the state responsibility sense with reparations in all the other ways you mention we are actually creating unnecessary conceptual confusions. Non-state actors have no reparation obligations in the state responsibility sense. Transitional reparations have more in common with primary rules than with state responsibility consequences. I mean no disrespect but what’s next: historical reparations for slavery? All of these discussions are important, but are different in nature and mixing them up just creates unnecessary confusion. There is nothing which creates greater confusion than transitional justice. It is important, but it isn’t state responsibility. In fact, the very definition of state responsibility is precisely its distinction with primary rules, a mix up at the centre of the UN Guidelines on Reparation and Access to an Effective Remedy. Again, please accept
    my comments in the most constructive manner.

  3. Luke Moffett Luke Moffett

    Dear Mark and Luis,

    Many thanks for your comments, we appreciate them. For the nuance in using assistance over reparations, I completely agree, it is something we are exploring in how such ex gratia payments affect any future reparation claims, and the importance of flexibility in ongoing violence. The broader notion of reparations to include legal persons is something we need to examine more as we have mainly focus on individuals and collectives, which even here there is ambiguity. This is related to Luis point between law and politics, that TJ covers both. Non-state actors can be bound by primary rules, such as IHL and IHRL in certain circumstances. Our position is given the changing nature of governance and violence, we can’t simply rely on a state centric system to redress gross violations of HR and international crimes as most conflicts are NIACs or committed under authoritarian regimes. This is not to say we are neglecting or overlooking PIL, but to better appreciate its place as lex lata but also to see where next with lex ferenda.

  4. This is very interesting post and looking forward to reading the handbooks on the subject. The issue of reparation by non-state armed groups leads to all sorts of difficulties. Some of these difficulties include the desire not admit guilt or wrongdoing by these groups. There is also the issue of enforceability. Reparations are usually associated with states and state actors. Bashar H. Malkawi

  5. Paola Molano

    Thank you for sharing these interesting ideas. I’m from Colombia and I know quite well the administrative reparation program and, sadly, I have to say that reparation for massive humane rights abuses is an obligation impossible to fulfill that only creates false expectations. In Colombia, as you mentioned, we have more than 8M of victims (registered) and the program tries to comply with the international standards and fulfilling the 4 elements of reparation for every individual who suffered a violation of her human rights during the armed conflict: satisfaction, restitution, rehabilitation and guarantees of non-recurrence. After 8 years of implementation of the Victim’s Rights Act we are far from the goal, despite the huge financial and institutional support that the implementation of the program have had.
    On the other hand, the program have created a complex narrative towards the satisfaction of victims rights, to the point that any reform to make the program more feasible is almost unthinkable and politically very costly, baca use it is assumed as an intent to lower the standard. In addition, the program competes for scarce resources in a scenario in which social investment in education, healthcare, living etc. is mandatory for the other part of the population that is not a victim of the conflict, and Colombia, as others countries that should implement reparations, is not a rich country.
    To sum up, from our experience I can affirm that reparations is something that have to happen, but the way in which it is going to be undertaken have to be responsible
    With the political, social and economic context of the country, because the standards sometimes forget that there’s no one-size fits all formula. If reparations aren’t conceived in a feasible way, what will happen is the creation of unattainable expectations that will add conflict to an already difficult to tackle situation.

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