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 (see
war reparations
War reparations are compensation payments made after a war by one side to the other. They are intended to cover damage or injury inflicted during a war.
History
Making one party pay a war indemnity is a common practice with a long history.
R ...
) that were
punitive
Punishment, commonly, is the imposition of an undesirable or unpleasant outcome upon a group or individual, meted out by an authority—in contexts ranging from child discipline to criminal law—as a response and deterrent to a particular acti ...
mechanisms determined by treaty and paid by the surrendering side of conflict, such as the
World War I reparations
Following the ratification of article 231 of the Treaty of Versailles at the conclusion of World War I, the Central Powers were made to give war reparations to the Allied Powers. Each of the defeated powers was required to make payments in eith ...
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
Human rights are Morality, moral principles or Social norm, normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for ce ...
violations by the parties responsible. The right of the victim of an injury to receive reparations and the duty of the part responsible to provide them has been secured by the
United Nations
The United Nations (UN) is an intergovernmental organization whose stated purposes are to maintain international peace and international security, security, develop friendly relations among nations, achieve international cooperation, and be ...
.
In
transitional justice, reparations are measures taken by the state to redress gross and systematic violations of
human rights law
International human rights law (IHRL) is the body of international law designed to promote human rights on social, regional, and domestic levels. As a form of international law, international human rights law are primarily made up of treaties, ag ...
or
humanitarian law
International humanitarian law (IHL), also referred to as the laws of armed conflict, is the law that regulates the conduct of war (''jus in bello''). It is a branch of international law that seeks to limit the effects of armed conflict by pro ...
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.
[See ] 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 system
The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
s, 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
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
, the second is a more efficient way to recognize the concerns of more people.
The
United Nations
The United Nations (UN) is an intergovernmental organization whose stated purposes are to maintain international peace and international security, security, develop friendly relations among nations, achieve international cooperation, and be ...
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.
#
Restitution
The law of restitution is the law of gains-based recovery, in which a court orders the defendant to ''give up'' their gains to the claimant. It should be contrasted with the law of compensation, the law of loss-based recovery, in which a court o ...
– 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.
#
Damages
At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
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 and loss of earnings, moral damage, cost of legal, medical, psychological, and social services.
# Rehabilitation – medical, psychological, social services, and legal assistance
# 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
Memorialization generally refers to the process of preserving memories of people or events. It can be a form of address or petition, or a ceremony of remembrance or commemoration.
Memorialization as a human right
Memorialization is a universal nee ...
.
# Guarantees of non-repetition – reforms ensuring the prevention of future abuses, including:
civilian control of the military
Civilian control of the military is a doctrine in military and political science that places ultimate responsibility for a country's strategic decision-making in the hands of the civilian political leadership, rather than professional militar ...
and security forces, strengthening an independent judiciary, protection of
civil service
The civil service is a collective term for a sector of government composed mainly of career civil servants hired on professional merit rather than appointed or elected, whose institutional tenure typically survives transitions of political leaders ...
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 rights to prompt, sufficient, and effective reparation. Victims can be individuals or a collective group of individuals who suffered similar violations. 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 dependants 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
State may refer to:
Arts, entertainment, and media Literature
* ''State Magazine'', a monthly magazine published by the U.S. Department of State
* ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, United States
* ''Our S ...
, as the authority responsible for ensuring the protection of human rights and the administration of justice within their borders, is correspondingly also responsible for providing redress for abuses and injustices suffered by their citizens. The UN Basic Principles also states 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 effective remedy and duty to provide reparation can be found in multiple human rights and humanitarian treaties and conventions, including:
# The
Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR) is an international document adopted by the United Nations General Assembly that enshrines the Human rights, rights and freedoms of all human beings. Drafted by a UN Drafting of the Universal De ...
– Article 8
# The
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that commits nations to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedo ...
– Article 2
# The
– Article 6
# The
United Nations Convention Against Torture
The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (commonly known as the United Nations Convention Against Torture (UNCAT)) is an international human rights treaty under the review of the United Nation ...
– Article 14
# The Convention on the Rights of the Child – Article 39
# The
Hague Conventions respecting the Laws and Customs of War on Land – Article 3
# Protocol Additional to the
Geneva Conventions
upright=1.15, Original document in single pages, 1864
The Geneva Conventions are four treaties, and three additional protocols, that establish international legal standards for humanitarian treatment in war. The singular term ''Geneva Conven ...
relating to the Protection of Victims of International Armed Conflicts – Article 91
# The
Rome Statute of the International Criminal Court (ICC) – Articles 79 and 75
Examples of reparations programs
Canada – For more than 100 years,
Canada
Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...
retained a practice of removing indigenous Canadian children from their families and placing them in church-run
Indian residential schools
In Canada, the Indian residential school system was a network of boarding schools for Indigenous peoples. The network was funded by the Canadian government's Department of Indian Affairs and administered by Christian churches. The school sys ...
(IRS). 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
The Royal Commission on Aboriginal Peoples (RCAP) was a Canadian royal commission established in 1991 with the aim of investigating the relationship between Indigenous peoples in Canada, the Government of Canada, and Canadian society as a whole. ...
(RCAP), 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
Justin Pierre James Trudeau ( , ; born December 25, 1971) is a Canadian politician who is the 23rd and current prime minister of Canada. He has served as the prime minister of Canada since 2015 and as the leader of the Liberal Party since 20 ...
apologized to the
lesbian, gay, bisexual, and transgender
' is an initialism that stands for lesbian, gay, bisexual, and transgender. In use since the 1990s, the initialism, as well as some of its common variants, functions as an umbrella term for sexuality and gender identity.
The LGBT term is an ...
people of Canada in the
House of Commons
The House of Commons is the name for the elected lower house of the bicameral parliaments of the United Kingdom and Canada. In both of these countries, the Commons holds much more legislative power than the nominally upper house of parliament. ...
and announced reparations that would be made to citizens who were injured by specific actions of the State.
Chile – In 1990,
Chile
Chile, officially the Republic of Chile, is a country in the western part of South America. It is the southernmost country in the world, and the closest to Antarctica, occupying a long and narrow strip of land between the Andes to the east a ...
's newly elected president
Patricio Aylwin
Patricio Aylwin Azócar (; 26 November 1918 – 19 April 2016) was a Chilean politician from the Christian Democratic Party, lawyer, author, professor and former senator. He was the first president of Chile after dictator Augusto Pinochet, a ...
created the National Truth and Reconciliation Commission to investigate the human rights abuses of General
Augusto Pinochet
Augusto José Ramón Pinochet Ugarte (, , , ; 25 November 1915 – 10 December 2006) was a Chilean general who ruled Chile from 1973 to 1990, first as the leader of the Military Junta of Chile from 1973 to 1981, being declared President of ...
's 1973-1990 dictatorial regime. The commission investigated disappearances, political executions, and torture, publishing the
Rettig Report
The Rettig Report, officially The National Commission for Truth and Reconciliation Report, is a 1991 report by a commission designated by Chilean President Patricio Aylwin (from the ''Concertación'') detailing human rights abuses resulting in dea ...
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.
Morocco – In
Morocco
Morocco (),, ) officially the Kingdom of Morocco, is the westernmost country in the Maghreb region of North Africa. It overlooks the Mediterranean Sea to the north and the Atlantic Ocean to the west, and has land borders with Algeria to ...
, the period between the 1960s and 1990s is often referred to as the "years of lead," referring to the massive human rights violations that occurred in the government's campaign of political oppression, including executions, torture, and the annihilation of other civil liberties. Shortly after he ascended the throne in 1999,
King Mohammed VI
Mohammed VI ( ar, محمد السادس; born 21 August 1963) is the King of Morocco. He belongs to the 'Alawi dynasty and acceded to the throne on 23 July 1999, upon the death of his father, King Hassan II.
Upon ascending to the throne, Moh ...
created the Independent Arbitration Commission (IAC) to compensate the victims of
forced disappearance
An enforced disappearance (or forced disappearance) is the secret abduction or imprisonment of a person by a State (polity), state or political organization, or by a third party with the authorization, support, or acquiescence of a state or po ...
s and arbitrary detention. The IAC decided more than 5,000 cases and awarded a total of US$100 million, but victims and their families complained of lack of transparency in the tribunal's procedures and demanded truth seeking measures in addition to financial compensation.
These pressures were instrumental in leading to the 2004 creation of the Arab world's first official truth-seeking initiative, the Equity and Reconciliation Commission. The IER issued a reparations policy that upheld notions of gender equity
and resulted in roughly US$85 million in financial compensation paid to almost 10,000 individuals, as well as recommendations on other measures such as the provision of health care and restoration of civil rights. The IER's recommendations also led to
a collective reparations program that combined symbolic recognition of human rights violations with a development component in eleven regions that had suffered from collective punishment. As of May 2010, implementation of the collective reparations program was ongoing.
Other reparations programs have been proposed and/or implemented in: Argentina, Brazil, Cambodia, Colombia, the Democratic Republic of Congo, East Timor, El Salvador, Germany, Ghana, Guatemala, Haiti, Iraq, Malawi, Liberia, South Africa, Kenya, the
United States, and others.
Dignity takings and dignity restoration
A
dignity taking
Dignity taking is the destruction or confiscation of property rights from owners or occupiers, where the intentional or unintentional outcome is dehumanization or infantilization. There are two requirements: (1) involuntary property destruction or ...
is the destruction or confiscation of property rights from owners or occupiers, where the intentional or unintentional outcome is dehumanization or infantilization.
There are two requirements: (1) involuntary property destruction or confiscation and (2) dehumanization or infantilization.
[Atuahene, Bernadette (2016-10-27). "Takings as a Sociolegal Concept: An Interdisciplinary Examination of Involuntary Property Loss". ''Annual Review of Law and Social Science''. 12 (1): 174. doi:10.1146/annurev-lawsocsci-110615-084457. ]ISSN
An International Standard Serial Number (ISSN) is an eight-digit serial number used to uniquely identify a serial publication, such as a magazine. The ISSN is especially helpful in distinguishing between serials with the same title. ISSNs ...
1550-3585. Dehumanization
Dehumanization is the denial of full humanness in others and the cruelty and suffering that accompanies it. A practical definition refers to it as the viewing and treatment of other persons as though they lack the mental capacities that are c ...
is “the failure to recognize an individual or group’s humanity” and
infantilization
Infantilization is the prolonged treatment of one who has a mental capacity greater than that of a child as though they are a child. Studies have shown that an individual, when infantilized, is overwhelmingly likely to feel disrespected. Such ind ...
is “the restriction of an individual or group’s autonomy based on the failure to recognize and respect their full capacity to reason.”
Evidence of a dignity taking can be established empirically through either a top-down approach, examining the motive and intent behind those who initiated the taking, or a bottom-up approach, examining the viewpoints of dispossessed people.
When this larger harm called a dignity taking occurs, mere reparations (or compensation for physical things taken) are not enough.
Dignity restoration is required.
Dignity restoration is a remedy that seeks to provide dispossessed individuals and communities with material compensation through processes that affirm their humanity and reinforce their agency.
In practical terms, the remedial process places dispossessed individuals or communities in the driver’s seat and gives them a significant degree of autonomy in deciding how they are made whole.
The dignity takings/dignity restoration framework was first created by Professor Bernadette Atuahene following her empirical exploration of land dispossession and restitution in South Africa in her book,
We Want What’s Ours: Learning from South Africa’s Restitution Program' (Oxford University Press 2014). Since then, many scholars across disciplines have applied these socio-legal concepts to an array of case studies in various time periods and geographic locations, providing a transnational, historicized approach to understanding involuntary property loss and its material and non-material consequences.
The dignity takings/dignity restoration framework provides a lexicon to describe and analyze property takings from poor and vulnerable populations across the globe in different historical periods; focuses on redress by linking events of property dispossession to highlight opportunities for learning, resistance, and solidarity; allows people who are not property scholars to participate in the conversation about involuntary property loss and adequate remedies; captures both the material and immaterial consequences of property confiscation; and inserts dignity into the scholarly discourse about property, countering the singular focus on efficiency, which has dominated legal analysis since the ascendancy of law and economics.
Potential problems
There are logistical problems inherent in reparations, such as clearly defining the objectives, goals, and processes by which reparations will be distributed, determining how to address a range of atrocities with streamlined programs, or balancing economic development with financing reparation efforts. Some experts suggest that the problems lie in the very definition of reparations themselves.
The right to seek and obtain reparations is vested with the state whose
citizens
Citizenship is a "relationship between an individual and a state to which the individual owes allegiance and in turn is entitled to its protection".
Each state determines the conditions under which it will recognize persons as its citizens, and ...
suffered the losses, but individuals are barred from pursuing a claim for compensation directly against the state that wronged them. The grant of reparations is thus a political question, and individuals who suffered harm may be left undercompensated or uncompensated.
The UN's guidelines on reparations could be contested on the fact that they equate human rights violations with violations of civil and political rights, ignoring abuses of economic, social, and cultural rights. The guidelines explicitly state that their intent is to restore victims to their status in a time of peace, but the distribution of rights and resources often wasn't equal in peacetime. Thus reparations, if their intent is to return a society to its
status quo
is a Latin phrase meaning the existing state of affairs, particularly with regard to social, political, religious or military issues. In the sociological sense, the ''status quo'' refers to the current state of social structure and/or values. W ...
, run the risk of ignoring systemic oppression and reproducing social hierarchies.
For instance, reparations programs have been critiqued for ignoring the needs of women in transitional justice processes. In 2007, women's groups mobilized to examine how reparations policies could be more responsive to victims of gender-based violence. Their efforts led to the "Nairobi Declaration on Women's and Girl's Right to a Remedy and Reparation," which states that "reparations must go above and beyond the immediate reasons and consequences of the crimes and violations; they must aim to address the political and structural inequalities that negatively shape women's and girl's lives."
Some of these concerns can be addressed by empowering women to have a voice in the reparations process, challenging discriminatory practices, and educating communities about sexual violence.
In addition to gender-based discrimination, children are often excluded from reparations procedures. The reasons of this are varied; reparations often fall in the hands of parents and are only indirectly given to children, and reparations programs often do not take into account the fact that children and adults are affected differently by violence. Thus reparations should also have a child-specific component to target abuses that are specifically suffered by children.
See also
*
Reparations for slavery
Reparations for slavery is the application of the concept of reparations to victims of slavery and/or their descendants. There are concepts for reparations in legal philosophy and reparations in transitional justice. Reparations can take numer ...
*
Holocaust reparations
The Holocaust had a deep effect on society both in Europe and the rest of the world, and today its consequences are still being felt, both by children and adults whose ancestors were victims of this genocide.
Evidence in Germany
German socie ...
References
Further reading
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HTML version
External links
The International Center for Transitional Justice's (ICTJ) Reparations Page relating to the Protection of Victims of International Armed Conflicts]
Assembly of First Nations: "AFN National Chief Says Private Audience with Pope Benedict XVI in Vatican City "Closes the Circle" and Enables Work Towards Reconciliation for Residential School Survivors"by
Theo van Boven
Theodoor Cornelis (Theo) van Boven (born 16 May 1934, Voorburg) is a Dutch jurist and professor emeritus in international law.
In 1977, he was appointed director of the United Nations' Division for Human Rights, a precursor of the UN Human Rights ...
procedural history note and audiovisual materialon the ''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'' in th
*
{{DEFAULTSORT:Reparations (Transitional Justice)
Human rights
International law