The term ‘reparation’ usually refers to the measures a state must take after it violates a rule of international law. Reparation can also apply more generally to remedying all wrongs, whether committed by a state and its agents or by private parties. Reparation for genocide and crimes against humanity will usually require remedial action by both individual perpetrators and the state involved because such acts are illegal under national and international law.
The aim of reparation is, where possible, to restore the situation that would have existed had there been no wrongful act. This means to wipe out all of the consequences of the act and to try to re-establish the situation that in all probability would have existed if the act had not been committed.
One widely accepted purpose of reparation is remedial justice, that is, to undo the wrong done to an injured party. Reparation is thus designed to put the injured party in the same position as if no wrongful act had occurred, without respect to the cost or consequences it may have for the wrong doer. Reparation may also serve to punish and deter wrongdoing or aim at reconciliation and inducing positive behavior.
Types of Reparation
Generally accepted forms of reparations include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. Since they are the most commonly accepted forms of reparation, we shall examine restitution and compensation in this article.
Restitution is intended to restore the victim to the situation that existed before the violations occurred and may include restoration to liberty, legal rights, social status, family life and citizenship, return to the place of residence, restoration of employment, and return of property. When restitution cannot be provided, compensation and/or satisfaction must substitute to remedy the harm that has been done.
Clearly, for survivors of international crimes such as genocide and crimes against humanity, large amounts of money may be necessary to place victims in the same position of relative satisfaction that they occupied before certain events took place. Compensation is, however, often inadequate as the primary form of reparation. The more serious the harm, the more compensation as a remedy becomes a problem. This is because criminal conduct harms not only the victim, it also undermines the rule of law and violates societal norms. For this reason, compensation is inevitably a second best response when prosecution and restitution prove impossible to achieve. Compensation supplies the means for whatever part of the former life and projects remains possible and allow for new projects. In cases where the perpetrator is made to pay, compensation also reflects a moral judgment of wrong doing on the actions of the perpetrator.
Compensation should be provided for any economically assessable damage resulting from the wrongful acts. Widely acceptable compensable losses include physical or mental harm and the pain, suffering and emotional distress such harm causes; lost opportunities such as education; material damages and loss of earnings, including the loss of earning potential; harm to reputation or dignity; and costs required for legal or experts assistance, medical services as well as psychological and social services.
These reparations may be delivered materially or symbolically and individually or collectively.
The Legal Basis of Reparation and Obligations Under International Law
Human rights law and humanitarian law both impose a duty on states to take reasonable measures, or in legal terminology to ‘exercise due diligence’, to prevent violations of human rights by private persons. If the state fails to fulfill this duty it will be responsible for providing reparations. In an early international court case, the Permanent Court of International Justice called the obligation to make reparations for an unlawful act ‘ a general principle of international law’ and part of ‘a general conception of law’ (Factory at Chorzow [Germany v Poland], 1928 P.C.I.J [ser. A], no. 17 at 29 [September 13]).
Human rights treaties and declarations adopted by the United Nations have also guaranteed individual victims the right to a remedy, that is, access to justice and reparations in national proceedings. The Universal Declaration of Human Rights, Article 8, proclaims that “[e]very one has a right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or laws.” This guarantee would, of course, include remedies for criminal acts that violate guaranteed rights.
The International Covenant on Civil and Political Rights contains a similar guarantee in its Article 2(3). The UN Human Rights Committee Overseeing Compliance with the Covenant has stated that when, for example, acts of torture occur a government has a duty to “conduct an inquiry into the circumstances of [the victim’s] torture, to punish those found guilty of torture and to take steps to ensure that similar violations do not occur in the future.” The Committee also has called for investigation and prosecution in cases involving arbitrary executions and disappearances. All these acts constitute types of reparations for the wrong done.
Under the Rome Statute of the International Criminal Court, victims who have suffered harm as a result of genocide, crimes against humanity and war crimes have the right to apply for reparations. The Rome Statute also makes provision for victims of these crimes to participate in the court process when their personal interests are affected. Article 75 specifies that the Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation.
The Procedure for Claiming Reparations
The issue of reparations for genocide and crimes against humanity is complex because the acts usually involve simultaneous breaches of national and international law by individuals and states. Reparations may be owed by both the state and the individuals responsible, and claims may be made by survivors at either the national or international level.
Once local remedies have been concluded, individuals who do not obtain redress may be able to bring claims directly against their own governments or another state in a human rights tribunal. Each human rights treaty usually specifies the rights that are protected and the types of reparations that the tribunal can award the individual whose rights have been violated.
Uganda and Reparation
In Uganda, provisions for reparations are contained in Agenda Item 3 on Accountability and Reconciliation of the Juba Peace Agreement, provisions that, once effectively enforced, would address issues on reparation..
Section 9.1 of the Agenda Item provides that reparation may include a range of measures such as rehabilitation, restitution, compensation, guarantees of non-recurrence and other symbolic measures such as apologies, memorials and commemorations. Priority is to be given to members of the vulnerable group. From sections 11 and 12, one could deduce that the vulnerable groups are women, girls and children.
Section 6.4 provides that alternative penalties and sanctions shall “require perpetrators to make reparations to victims.” This mandatory requirement can only be effective if the perpetrator is in position to fulfil the requirement. This creates an obligation on the Government to make the required reparation.
For the Government to effectively meet the requirements for reparation under the Juba Agreement, there is therefore a need for, inter alia:
- A clear policy on reparation and supporting guidelines and later legislation regulating it. The legislation needs to be flexible and the provide opportunity for wide interpretation of reparation on a case by case and individual basis.
- Provision for victim participation and legal representation in formal and non-formal justice mechanisms.
- Provision for gender adviser to guide the proceedings in formal and non-formal justice mechanisms.
- Adoption of international standards, especially as provided under Uganda’s International Criminal Court Act, 2010.
- Involvement of women in the development of the accountability mechanisms and in decision making.
- Establish a long term and reliable source of funding such as a Trust Fund for victims.
Public hearings and dissemination of report to the public.▪