Repairing the Past

Article, Post MagazineMarch 2007

Insurance

The demise of dictators such as Saddam Hussein has highlighted the currency of human rights but, as James Stanbury writes, quantifying harm to compensate victims of abusive regimes is problematic.

The legal framework for establishing human rights and assessing violations has developed rapidly over recent years. However, there is generally less focus on the purpose and valuation of any remedies, especially where the abuse has occurred on a mass basis.

It is fair to say there are no rights without remedies. There is a growing consensus that victims of human rights violations are entitled to reparations. Although the language used by international legal instruments has differed over the years, their overriding purpose is the same. For example, Article 8 of the Universal Declaration of Human Rights refers to ‘effective remedies’ whereas Article 14 of the Convention against Torture speaks of ‘fair and adequate compensation including the means for as full rehabilitation as possible’ and Article 50 of the European Convention notes ‘just satisfaction for the victim’.

Political context

But it is only in the last 10 or so years that international law has really developed to allow the active pursuit of global justice. This has resulted in steps to redress the harm suffered by individuals at the hands of dictatorial and abusive regimes and impose accountability on their protagonists, such as Slobodan Milosevic and Augusto Pinochet. This shift to a global reparations ‘ethos’ has arisen from a confluence of political factors: the end of the Cold War; the rise in prominence of human rights; the trend away from authoritarianism to constitutional democracy; and partial eclipse of sovereignty in the face of increasing globalisation.

This demonstrates how important the political context is. This context, when allied to a ‘coalition of will’ from participating states, is the decisive precursor for the success of a reparations programme. Indeed, the combination of a wealthy aggressor and collective antagonistic international attitudes propelled the success of, for example, the (first) Gulf War reparations programme. However, it must be noted that this was a programme aimed at war reparation rather than human rights violations.

The utopian goal of any reparations programme is the same as in any tort system – restitution in integrum. In individual cases of human rights violation, this principle is sacred. However, where mass cases of abuse arise, a case-by-case approach is not only impractical but serves to disaggregate both the victims and the reparation effort. Victims inevitably have unequal access to the courts and receive unequal awards, creating a hierarchy of victims. Similarly, unequal awards grab unhelpful press headlines, which impede the process.

Thus, the programmes become more administrative than judicial, distinguishing them from a tort system. The latter tends to emphasise differences; reparations programmes do not. Indeed, they obviate the difficulties and costs of traditional litigation, such as long delays, the need for higher levels of evidence scrutiny, cross-examination anxiety and the risk of unfavourable decisions. This was certainly how the 11 September Compensation Fund was promoted, and the take-up proved that point.

The recent international mass reparation programmes – for example, in Argentina (post-Martinez), Chile (post-Pinochet) and South Africa (post-apartheid) – are designed in the context of transitional democracies. Commentators are agreed on their goals, namely recognition, civic trust and solidarity.

One of the principal aims of such programmes is to institutionalise the recognition of individuals as citizens with equal rights. By acknowledging historical facts, it is the truth commissions – such as in South Africa – that contribute to that process. In the same way, programmes provide a catalyst for the promotion of civic trust and solidarity because they underwrite the serious intention of the state to re-establish relations of equality and respect.

Reparations are not intended to replicate the tort system, so the awards tend not to be comparable. Of course, one of the main dissatisfactions with reparation awards is that they reflect insufficient compensation to the victim.

This reflects the enormous difficulty and ultimate impossibility of quantifying harm and the realisation that no amount of money can compensate an individual for the loss of a family member or for the trauma of torture.

But such dissatisfaction also highlights the lack of understanding as to what mass reparation schemes are trying to achieve. Proportionate compensation disaggregate both the victims and the process, it will simply never be right. Awards should not be interpreted as an effort to put a price on the effects of harm but as a contribution. They cannot provide whole restitution but represent a contribution to acknowledging harm done and to the future quality of life of the survivors.

Funding reparations

In transitional democracies, reparations are necessarily a forward-looking mechanism and it is these democracies that face the practical difficulties of financing them. Scarcity of financial resource, coupled with the need to preserve and sometimes institute macroeconomic stability after regime change, create those difficulties.

But does the international community have an appetite to help financially?

History shows that the response is modest. The reasons for this are twofold: firstly, funding is seen as an act of reparation itself (and therefore the responsibility falls on the incumbent government); and secondly, fear creeps in – of donor states entering into conflict with that government.

Can more be done? International law may be able to impose obligations on states to provide funds via, say, the International Criminal Court or for international financial institutions (such as the International Monetary Fund or World Bank) to provide loans or credits to states with limited funds.

Alternatively, a special commission could be created in the UN to collect and administer funds for reparation programmes. This might sound utopian, and that may be right as history is not encouraging. For example, the Trust Fund for Victims in the ICC has only received EUR2.37m (£1.6m), as of January this year, albeit that this is a fund aimed more at individual human rights violations. It is the consensual political context that will provide the impetus to redressing this imbalance.

As the impact of international human rights gains ground and the political context changes, so the focus will be on the administration and financing of reparation schemes will increase. The UN may yet develop its own independent claims commission that will administer and finance reparation programmes. Its contribution to the advancement of human rights would, no doubt, be significant and recognise the central aim of reparations – repairing the past is to prepare for the future.

 

As appeared in Post Magazine, March 2007.

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