Reparations (transitional justice)


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 that were punitive mechanisms determined by treaty and paid by the surrendering side of a conflict, such as the World War I reparations paid by Germany and its allies. Reparations are now understood as not only war damages but also 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 party responsible to provide them have 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.
Proponents of reparations assert that in order to be effective, reparations must be employed alongside 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

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 Right to a Remedy and Reparation for Victims of 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, loss of earnings, moral damage, and 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.

    Who receives reparation

Victims of violations of international human rights or humanitarian law have the right to prompt, sufficient, and effective reparation. Victims can be individuals or a collective group of individuals who have suffered similar violations. Descendants of victims also have rights to reparations for injustices that affected the emotional and financial well-being of deceased family members. 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 dependents 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 its borders, is correspondingly also responsible for providing redress for abuses and injustices suffered by its citizens. The UN Basic Principles also state 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 an effective remedy and the duty to provide reparation can be found in multiple human rights and humanitarian treaties and conventions, including:
  1. The Universal Declaration of Human Rights – Article 8
  2. The International Covenant on Civil and Political Rights – Article 2
  3. The International Convention on the Elimination of All Forms of Racial Discrimination – Article 6
  4. The United Nations Convention Against Torture – Article 14
  5. The Convention on the Rights of the Child – Article 39
  6. The Hague Conventions respecting the Laws and Customs of War on Land – Article 3
  7. Protocol Additional to the Geneva Conventions relating to the Protection of Victims of International Armed Conflicts – Article 91
  8. The Rome Statute of the International Criminal Court – Articles 79 and 75

    Examples of reparations programs

Argentina

The Argentine government provided reparations to the victims of human rights abuses suffered under the military dictatorship under the period 1975-1983.

Canada

For more than 100 years, Canada retained a practice of removing indigenous Canadian children from their families and placing them in church-run Indian residential schools. 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, 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.
In 2017 Prime Minister Justin Trudeau apologized to the lesbian, gay, bisexual, and transgender people of Canada in the House of Commons and announced reparations that would be made to citizens who were injured by specific actions of the State.

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.

Japan

During WWII, the Imperial Japanese Army created the jugun ianfu system and the Rape of Nanjing. Japanese soldiers committed numerous war crimes against civilians, including the mass rape and murder of over 200,000 Southeast Asian women. These women, some as young as twelve years old, were coerced and abducted from their homes and placed in military-controlled facilities where they would serve as sex slaves to the imperial army.
Japan released a public apology in 1984; however, it did not attempt to restore or redress the victims of the atrocity.
In 1991, surviving Korean comfort women filed a lawsuit against the Imperial Japanese Army and in 1998 three comfort women were awarded $2,300 each. As a result of additional lawsuits, Japan appointed a committee to investigate the issue of comfort women to address further attempts for redress.
In order to provide financial compensation to victims, the committee established the Asian Women's Fund, which collected donations from private individuals and organizations, as well as the government, in an effort to financially aid comfort women and support contemporary women's issues. This fund also contributed to emotional redress by representing the Japanese people's remorse for the actions of the imperial army.