Reparations in Transitional Justice
The meaning of the term ‘reparations’ is ‘not settled either in theory or practice’ and varies in different contexts (Viaene 2009: 13). The term is used in this chapter to describe the right of victims to redress for serious violations of international human rights and humanitarian law. From here, it is useful to begin by briefly considering reparations in international law.4 This is because a grounding in international law provides a legal justification that can be used by ‘representatives and advocates of victims’ rights in domestic political arenas to the effect that victims are legally entitled to reparations, and that the domestic system is obliged to make this right tangible by providing meaningful procedures’ (Falk 2006). In this way, international law establishes reparations as a legal obligation and not merely ‘a luxury that poor countries cannot afford’ (Roht-Arriaza & Orlovsky 2009: 203). Further, international law can reinforce and give ‘a higher level of credence’ to claims insisting on reparations ‘as part of a new political regime of “fairness”’ (Falk 2006: 497). As such, international development actors may pin their reparations aid to international legal obligations. They might usefully draw on international law as a tool to frame their engagement, including for policy dialogue, to influence development partners.
The international legal basis for reparations is set out in various international (Universal Declaration of Human Rights 1948: 8; International Covenant on Civil and Political Rights 1966: 2(3), 9(5) & 14(6); International Convention on the Elimination of All Forms of Racial Discrimination 1965: 6; Convention on the Elimination of All Forms of Discrimination Against Women 1979; Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984: 14)5 and regional (American Convention on Human Rights 1969: 11(3); European Convention on Human Rights 1950: 8; African Charter on Human and Peoples Rights 1981: 5)6 human rights instruments and international humanitarian law instruments (Protocol I of the Geneva Conventions 1977). The right to reparation forms part of international criminal law whereby the Rome Statute of the International Criminal Court (ICC) provides for reparations to victims of international crimes (Rome Statute 1998: 75).7 The law of state responsibility also places an obligation on states to make reparation for harm caused by a breach of an international obligation.8 Further, jurisprudence confirms that states can have an international legal obligation to provide remedies to individuals for serious human rights violations suffered, including torture, rape, disappearances, and extrajudicial executions.9
To elaborate, the duty on states to provide remedies to victims of serious human rights violations is owed where the violations were either caused by the state or where it did not seriously try to prevent them (Mosse & Lewis 2006: 1-26). The state will still be responsible to provide reparations to victims of serious human rights violations owing to acts or omissions of previous governments. This is because in international law, the state is a continuing legal entity which bears responsibility for the acts even of past violent governments. For abuses caused by the state, the duty is owed even where state agents (e.g., law enforcement officials) exceed the authority granted to them to exercise the state’s powers. Regarding the failure of state agents to prevent human rights abuses, the standard for establishing state responsibility for those abuses—and the corresponding duty to make reparation—is the failure of state agents to exercise due diligence in preventing them (Hessbreugge 2004: 265; ICTJ 2014; Steiner et al. 2008). As Evans explains, while a state may not have been ‘directly and solely responsible’ for all violations, state responsibility may still be established due to ‘complicity,’ ‘omission,’ as well as ‘failure to prevent and demonstrate due diligence’ (2012: 4).
With respect to the meaning of ‘remedy,’ the UN Human Rights Committee (HRC) has explained the meaning of ‘effective remedy’ as provided for in article 2(3) of the International Covenant on Civil and Political Rights (ICCPR). An ‘effective remedy’ has been interpreted, in the context of ICCPR violations, as encompassing a dual obligation on states both to bring to justice perpetrators of rights violations and to provide appropriate reparation to individuals for violations of their ICCPR rights (HRC 2004). In ICCPR practice, appropriate reparation can involve restitution, rehabilitation, and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition, and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations. The HRC has found the right to an effective remedy for violations under the ICCPR cannot be subject to lawful derogation, so cannot be lawfully denied to victims under any circumstances (HRC 1994).
By way of example, this means that States Parties to the ICCPR are obligated under international law to ensure that victims of torture or other cruel, inhuman, or degrading treatment or punishment have access to a remedy and therefore reparation (ICCPR, Article 7). While the Solomon Islands is not a party to the ICCPR, customary international law may still require the Solomon Islands Government to provide remedies to victims for breaches of customary human rights law—the prohibition of torture and arbitrary deprivation of life are examples (Evans 2012; HRC 1994).
The right to reparation is also set out in the UN’s 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 (hereafter the Basic Principles). Adopted by the UN General Assembly in 2005, the articulate the duty of States to provide ‘adequate, effective and prompt’ reparation to victims of gross violations of international human rights law or serious violations of international humanitarian law (UN Basic Principles 2006: Part IX, para. 15). The Basic Principles (2006: Part IX, para. 15) provide that this duty applies for acts or omissions attributable to the State (see above discussion on state responsibility for human rights violations). Moreover, paragraph 16 recommends states establish national reparations programs where those liable are unable or unwilling to meet their obligations. The General Assembly’s adoption of the Basic Principles may be read as indicating the international community’s broad recognition and acceptance of the right to reparation internationally (Rombouts et al. 2005).