(5) REPARATIONS

Question 1

Do individuals have right to reparations?

Answer 1

yes, now considered, esp after WWII (emergence of HRs and recognition of Rs of victims)

Question 2

What was said by the Court of International Justice in the Chorzow Factors case re reparations?

Answer 2

breach of an engagement involves obligation to make reparation in adequate form

Question 3

2 elements of a right to a remedy

Answer 3

1) substantive component
2) procedural component

Question 4

1) substantive component of a right to a remedy

Answer 4

right to reparation - restitution, compensatoin, rehab etc

Question 5

2) procedural component of remedy

Answer 5

process that leads to outcome of reparations, duty to provide effective remedy, access to independent authority

Question 6

victim =

Answer 6

person whose rights have been violated (can collectively suffer harm)

Question 7

can victims include family?

Answer 7

yes, can include immediate fam or dependants of direct victim and persons who’ve suffered harm in intervening to assist victims

Question 8

resources and victims - the difficult:

Answer 8

hard to decide which victims are prioritised - violations affect victims difficulty! Must consult with dif victims groups

Question 9

5 forms of reparations

Answer 9

1. Restitution
2. Compensation
3. Rehabilitation
4. Satisfaction
5. Guarantees of non-repetition

Question 10

using multiple forms of reparations is beneficial bc

Answer 10

allows response to variety of harms and victim needs

Question 11

What is important in the provision of compensation as reparation?

Answer 11

gender-sensitive consdierations! Economic dimensino to SBV, loss of earnings etc, inabilty to have children, psychological support

Question 12

What is satisfaction as a form of reparations?

Answer 12

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

Question 13

Transformative reparations and SGBV

Answer 13

reparations should be transformative! we don’t always want restitution– want reparations to have an effect on the inequalities that contributed to the violence

Question 14

Examples of transformative reparations for SL TRC

Answer 14

free healthcare (incl mental health), educational support for kids of victims, skill training, housing and pensions, micro credit and mini projects

Question 15

what were the gender specific legal and institutional reforms implemented as part of reparations in SL following the SL TC?

Answer 15

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

Question 16

domestic reparations eg, in Colombia and south Afria should prioritise

Answer 16

consultaiton w victims, marginalised groups in implementing reparations programs

Question 17

what is a challenge to the provision of reparations to victims?

Answer 17

sometimes don’t have bank accounts or even ID to verify who they are

Question 18

Role of international HR brodies in the provision of reparations

Answer 18

they can order reparations individually, but often limited and small amounts! (ie for ECtHR

Question 19

inter-american court of HR is more progressive in what way

Answer 19

wrt reparations wrt mass atrocities (Plan de Sanchez Case)

Question 20

Were reparations awarded at Nuremberg and Tokyo?

Answer 20

NO! about criminal responsibiltiy of individuals + often indigent

also not given in the ICtY, ICTRm SCLS

Question 21

outside ICL context, may be greater scope for transformative potential of reparations but only when

Answer 21

victims and affected community members play a role in the decision making and when linked to structural, non-temporary changes

Question 22

are the basic principles of reparations aimed at embracing transformations?

Answer 22

NO! this can be problematic esp in context of restitution - do we want victims going back to poverty and discrimination (esp for women)

Question 23

IACtHR’s approach re reparations

Answer 23

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)

Question 24

Where in Rome Statute is there support for reparations and what sort of mandate does the ICC have?

Answer 24

• Art 75 RS - empowered to make reparations for victims
• NARROW mandate - for victims based on criminal law

Question 25

how does transformative reparation aim conflict with mandate of ICC re reparations

Answer 25

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!)

Question 26

Overall transformative reparataions offer an integrative approach to

Answer 26

address and promoting human rights and structural inequalities

Question 27

Transformation via reparations can only occur by States when

Answer 27

they have political will and ability to do so

Question 28

reparations must constitute part of

Answer 28

broader goal of traansformatiom - just part of process

Question 29

Colombia’s reparations model:

Answer 29

subsistence model - aimed at providing assistance to achieve a stable situation so as to then fully benefit from reparations provided

Question 30

Within Colombia’s reparation model there was distance btw the victims and identification of perpetrators - why?

Answer 30

bc only victims were recognised!

Question 31

Effectiveness of Colombia’s reparation program

Answer 31

• subsistance model
• consultation w victims
• based on state responsibility

Question 32

how can transformative reparations have transformative effect in respect of sexual and gender based violence?

Answer 32

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

Question 33

transformative justice achieves radical transformations through what 3 ways

Answer 33

• 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

Question 34

Limitations of transformative reparations

Answer 34

1. Breadth, costs, evidence of effectiveness, unrealistic expectations
2. Legitimacy of ICC in relation to imposing transformative reparations
3. Fairness for individual defendant against whom the reparations award is made
4. Victims might not want transformative reparations of a collective character, often preferring individual measures (e.g. compensation)

Question 35

What did the Barrios Altos case say about amnesties?

Answer 35

[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.

Question 36

What happened with Gaddafi and amnesty laws?

Question 37

What did the ICC appeals chamber conclude re amnesties and Gaddafi?

Answer 37

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

Question 38

When are amnesties permitted?

Answer 38

If amnesty is conditional e.g. on participation in TRC or subject to reparations being made, it would be in compliance with IHRL

Question 39

what amnesties were offered in the barrios altos case

Answer 39

2 amnesty laws offering broad impunity to state officials who committed serious HR violations

Question 40

2 amnesty laws offering broad impunity to state officials who committed serious HR violations were a breach of the IACHR by Peru because:

Answer 40

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

Question 41

What was a consequence of the ruling by the IACtHR in Barrios Altos v Peru

Answer 41

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

Question 42

Have there been challenges to amnesties in Brazil?

Answer 42

less challenges than other countries - more of a focus on politifcal advocacy vs legal strategies