(5) REPARATIONS Flashcards
Do individuals have right to reparations?
yes, now considered, esp after WWII (emergence of HRs and recognition of Rs of victims)
What was said by the Court of International Justice in the Chorzow Factors case re reparations?
breach of an engagement involves obligation to make reparation in adequate form
2 elements of a right to a remedy
1) substantive component
2) procedural component
1) substantive component of a right to a remedy
right to reparation - restitution, compensatoin, rehab etc
2) procedural component of remedy
process that leads to outcome of reparations, duty to provide effective remedy, access to independent authority
victim =
person whose rights have been violated (can collectively suffer harm)
can victims include family?
yes, can include immediate fam or dependants of direct victim and persons who’ve suffered harm in intervening to assist victims
resources and victims - the difficult:
hard to decide which victims are prioritised - violations affect victims difficulty! Must consult with dif victims groups
5 forms of reparations
- Restitution
- Compensation
- Rehabilitation
- Satisfaction
- Guarantees of non-repetition
using multiple forms of reparations is beneficial bc
allows response to variety of harms and victim needs
What is important in the provision of compensation as reparation?
gender-sensitive consdierations! Economic dimensino to SBV, loss of earnings etc, inabilty to have children, psychological support
What is satisfaction as a form of reparations?
Non-financial form of reparation for moral damage or damage to the dignity or reputation:
* verifying facts
* public apologies, commeration of victims
* search for disappeared, identities of those abducted
Transformative reparations and SGBV
reparations should be transformative! we don’t always want restitution– want reparations to have an effect on the inequalities that contributed to the violence
Examples of transformative reparations for SL TRC
free healthcare (incl mental health), educational support for kids of victims, skill training, housing and pensions, micro credit and mini projects
what were the gender specific legal and institutional reforms implemented as part of reparations in SL following the SL TC?
o gender-specific legal and institutional reforms, including the repeal of all discriminatory legislation, enactment of gender-progressive laws, and ensuring that at least 30% of candidates for public elections are women.
+ apology from President in 2010 on IWD in 2010 re failing to protect women in the conflict
domestic reparations eg, in Colombia and south Afria should prioritise
consultaiton w victims, marginalised groups in implementing reparations programs
what is a challenge to the provision of reparations to victims?
sometimes don’t have bank accounts or even ID to verify who they are
Role of international HR brodies in the provision of reparations
they can order reparations individually, but often limited and small amounts! (ie for ECtHR
inter-american court of HR is more progressive in what way
wrt reparations wrt mass atrocities (Plan de Sanchez Case)
Were reparations awarded at Nuremberg and Tokyo?
NO! about criminal responsibiltiy of individuals + often indigent
also not given in the ICtY, ICTRm SCLS
outside ICL context, may be greater scope for transformative potential of reparations but only when
victims and affected community members play a role in the decision making and when linked to structural, non-temporary changes
are the basic principles of reparations aimed at embracing transformations?
NO! this can be problematic esp in context of restitution - do we want victims going back to poverty and discrimination (esp for women)
IACtHR’s approach re reparations
adopted explicit approach re collective reparation awards focused on socio-economic measures to transform collectively victims living conditions and structural inequalities (Plan de Sanchez Case)
Where in Rome Statute is there support for reparations and what sort of mandate does the ICC have?
- Art 75 RS - empowered to make reparations for victims
- NARROW mandate - for victims based on criminal law
how does transformative reparation aim conflict with mandate of ICC re reparations
ICC mandate focused on repairing victims of crimes, focusing on broader reparations could undermine their rights –> reparations flow from individual conviction (ICC isn’t a gov!)
Overall transformative reparataions offer an integrative approach to
address and promoting human rights and structural inequalities
Transformation via reparations can only occur by States when
they have political will and ability to do so
reparations must constitute part of
broader goal of traansformatiom - just part of process
Colombia’s reparations model:
subsistence model - aimed at providing assistance to achieve a stable situation so as to then fully benefit from reparations provided
Within Colombia’s reparation model there was distance btw the victims and identification of perpetrators - why?
bc only victims were recognised!
Effectiveness of Colombia’s reparation program
- subsistance model
- consultation w victims
- based on state responsibility
how can transformative reparations have transformative effect in respect of sexual and gender based violence?
transformative effect on inequalities, rather than reinstate or reinforce the structural conditions within society that uphold such practices and beliefs and that inform the perpetration of sexual violence
transformative justice achieves radical transformations through what 3 ways
- ESC rights and structural violence
- From legal to social and political solutions
- From state-based processes to local, community-based responses with focus on economic development and programming
Limitations of transformative reparations
- Breadth, costs, evidence of effectiveness, unrealistic expectations
- Legitimacy of ICC in relation to imposing transformative reparations
- Fairness for individual defendant against whom the reparations award is made
- Victims might not want transformative reparations of a collective character, often preferring individual measures (e.g. compensation)
What did the Barrios Altos case say about amnesties?
[A]ll amnesty provisions … are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law.
What happened with Gaddafi and amnesty laws?
What did the ICC appeals chamber conclude re amnesties and Gaddafi?
that the Libyan amnesty law didn’t apply to Gaddafi since the crmimes were expressly excluded by that law –. but hte Appeals chamber just said IL is still in in the developmental stage on the question of acceptability of amnesties’ – very dif approach to the IACtHR
When are amnesties permitted?
If amnesty is conditional e.g. on participation in TRC or subject to reparations being made, it would be in compliance with IHRL
what amnesties were offered in the barrios altos case
2 amnesty laws offering broad impunity to state officials who committed serious HR violations
2 amnesty laws offering broad impunity to state officials who committed serious HR violations were a breach of the IACHR by Peru because:
the legal effects of these laws resulted in violations of Articles 1(1) and 2 of the Convention, which require States parties to ensure and guarantee Convention rights and harmonize domestic law with their Convention obligations. It also found that amnesties for serious violations violate the right to a fair trial enshrined in Articles 8(1) of the Convention by inhibiting victims’ access to justice and the right of victims to judicial protection provided by Article 25
What was a consequence of the ruling by the IACtHR in Barrios Altos v Peru
enabled the reopening of cases that had been closed by the amnesty laws. This was possible even though the Peruvian government did not enact legislation to formally annul the amnesty laws as under the Peruvian constitution, international human rights law and the jurisprudence of the Inter-American Court automatically form part of domestic law –> not teh case in other SA countries - where giving effect to an Inter-American Court decision declaring amnesty to be null and void would require domestic legislation
Have there been challenges to amnesties in Brazil?
less challenges than other countries - more of a focus on politifcal advocacy vs legal strategies
