We are delighted to welcome this guest post from Luke Moffett. Luke Moffett is a lecturer in the School of Law Queens University Belfast. He is currently working on an Arts and Humanities Research Council (AHRC) funded project entitled Amnesties, Prosecutions and the Public Interest in the Northern Ireland transition. With colleagues at Queens (Kieran McEvoy and Gordon Anthony) the Transitional Justice Institute, University of Ulster (Louse Mallinder) and local NGO Healing Through Remembering, the project is designed to provide legal, historical and international information on dealing with past in order to let people make up their own mind on these difficult and sensitive issue. This blog is part of a series written in response to specific requests for ‘user friendly’ papers designed to provide technical guidance for civil society and political actors. These and other project outputs may be found on the project website at http://blogs.qub.ac.uk/amnesties/
Reparations are often considered victim-centred measures of redress designed to restore or heal the harm that victims have suffered. In comparison, amnesties are usually viewed as ‘perpetrator focused’ since they are normally (at least in recent decades) designed to facilitate former combatants or security force personnel in participating in measures, such as truth recovery, the return of missing persons, decommissioning, or the break-up of armed groups. This blog outlines the use of reparations in transitional justice processes, before discussing amnesty laws. It then explores how amnesties and reparations can complement each other in redressing the past while facilitating wider objectives of peace and reconciliation.
Reparations are measures intended to remedy the harm victims have suffered. They may be directed at redressing the harm suffered by individuals and groups or communities. Reparations for victims can be distilled down to three important elements: (1) acknowledgement of suffering; (2) remedy harm; and (3) the participation of those who been responsible for the harm either directly or through some representative mechanism (sometimes the state) in trying to ‘right the wrong’.
TYPES OF REPARATIONS
The UN Basic Principles and Guidelines on the Right to a Remedy and Reparation recognises that to remedy harms experienced by victims effectively, victims should, where appropriate, have access to five types of reparations: restitution, compensation, rehabilitation, measures of satisfaction and guarantees of non-repetition.
Restitution seeks to ‘re-establish the situation that existed before the violation occurred’, through measures such as returning property or facilitating victims to return to their former place of residence.
Compensation involves the use of monetary or economic awards to victims for the harm or loss they have suffered, enabling them to choose the best way to use such lump sum award (or pension) to improve their quality of life.
Rehabilitation is the process of trying to reinstate an ‘individual’s full health and reputation after the trauma of a serious attack on one’s physical and mental integrity…[so as to] restore what has been lost’ through medical, social and educational measures.
Measures of satisfaction repair the moral damage suffered by victims, in that they are supposed to reaffirm the victim’s dignity and acknowledge their suffering. Such measures may include public apologies, memorials, recovery of the bodies of those disappeared, judicial and administrative sanctions against those responsible, full disclosure of the truth and an accurate account of the violations committed. Such measures clearly overlap with victims’ right to justice.
Guarantees of non-repetition are assurances and reforms made to prevent future victimisation, such as ensuring civilian control of the military. Reparations can be both material and symbolic, and where appropriate states should provide both forms in order to effectively remedy victims’ harm.
The Inter-American Court of Human Rights has consistently ordered states to carry out extensive reparation programmes for victims incorporating a number of different types of reparations. By way of example, in the Mapiripán Massacre v Colombia case, over a hundred paramilitaries attacked the town of Mapiripán and detained, tortured, and executed at least 49 civilians, destroyed their bodies, and threw them into a river, causing the survivors to abandon the town and seek refuge elsewhere. The Inter-American Court ordered the State to construct a memorial, to compensate and provide rehabilitation to survivors and families, identify, recover and return the remains of victims to their next of kin, and to guarantee the safe return of the survivors to Mapiripán, allowing them to reintegrate into the community and the possibility of future reconciliation.
In contrast the European Court of Human Rights (ECHR) has preferred to order compensation to victims of violation of human rights and effective satisfaction through findings of violations of an individual’s human rights, while obligating the state to provide other measures of satisfaction and guarantees of non-repetition more indirectly through positive obligations. The right to life cases related to the conflict Northern Ireland, such as the McKerr and Jordan cases (concerning the use of deadly force by the state) well illustrate this approach. In these cases, the EHCR ordered the paying of certain monetary damages to victims while finding that the United Kingdom government had failed to carry out effective investigations in breach of its Article 2 obligations. The Court leaves significant discretion to the state as to how to best fulfil these positive obligations.
In the case of Northern Ireland, the response of the UK government was that a ‘package of measures’ (including the establishment of the Historical Enquiries Team, the work of the Office of the Police Ombudsman and reforms to the Inquest system) constituted its fulfilment of its Article 2 obligations. In other cases the European Court has ordered restitution in cases of land or property illegally occupied. However, the general approach of the European Court has been to leave it largely to the individual states’ discretion as to how it should ensure victims’ right to remedy, unlike the Inter-American Court which orders states to carry out specific reparations.
REPARATIONS AND PROSECUTIONS
In some instances, prosecution of a suspected perpetrator could be considered a measure of satisfaction, as it acknowledges the suffering of a victim and holds those responsible to account. Thus reparations may be connected to prosecutions, as in the International Criminal Court, whereby if an individual is convicted of a crime, reparations can be ordered against the perpetrator. However, such reparations are very much limited to the few cases which successfully result in a prosecution for serious human rights violations. They also benefit a far smaller number of victims in comparison to free standing reparation mechanisms or those attached to truth commissions.
Similarly in Northern Ireland a court can order a convicted person to pay compensation or to return property to the victim. Alternatively if prosecutions do not take place, victims can bring civil claims against individuals or claim compensation from the state for damages through the Criminal Injuries Compensation Service. Yet these mechanisms are meant to deal with individual crimes, not with the scale of the conflict in Northern Ireland where thousands were killed and tens of thousands were more injured. The Criminal Injuries Compensation Service has also been fraught with problems and controversies, such as not acknowledging victims’ pain or loss of bereavement based on incomes at the times of the offences and excluding the relatives of paramilitaries who were killed. Although reparations can be attached to prosecutions, such criminal processes need to be complemented by wider ranging reparation mechanisms to ensure all those who suffer are able to equally access an effective remedy.
RECONCILING AMNESTIES AND REPARATIONS
While reparations are focused on remedying victims’ harm and preventing further victimisation, amnesties are legal tools deployed by governments to prevent criminal prosecutions and/or civil suits for specific offences or against specific individuals. Where amnesties bar civil remedies, they can prevent victims from claiming reparations, either because they explicitly exclude civil litigation or where civil claims are dependent on a criminal conviction.
Historically blanket amnesties were often used by governments to ensure impunity for state and sometimes non-state actors. However, such blanket amnesties have been repeatedly deemed in breach of international law. In more recent times, conditional amnesties (linked to other processes such as truth recovery) have become the norm in transitional justice. Through the use of such conditional amnesties, reparations and amnesties may be seen as complimentary.
Conditional amnesties are frequently used by truth commissions to incentivise combatants to engage in telling the truth, making apologies or returning property. Amnesties and truth commissions can also be used in conjunction with separate reparation programmes. From 1990 to 2007, 97 amnesty laws have been complemented by reparation mechanisms. By way of example, in Colombia reparations have been ordered against individuals and paramilitary organisations to return land and property to victims, as well as to make apologies and to pay compensation. In return for providing reparations these ex-combatants have been given reduced sentences. Of course, such measures are contingent on perpetrators having sufficient resources. For example, in the Rwandan gacaca courts perpetrators of genocide were ordered to provide compensation, but due to many of them being impoverished, many could only provide apologies and community service. Thus, in practice, in many transitional the practical difficulties in accessing resources from former combatants means that reparations often come from state (or international community) established and funded mechanisms and symbolic measures of satisfaction occur more often than compensation and restitution.
In some transitional justice contexts, the setting aside of prosecution and punishment is framed as a form of reparative or restorative justice which is focused on reconciliation and remedying victims’ harm. For example, in South Africa, the enabling legislation which established the Truth and Reconciliation Commission stipulated that amnesties and reparations should be viewed together as part of a wider understanding of justice which was focused on restoring victims rather than punishing perpetrators. While the South African amnesty extinguished victims’ claims for reparations against a perpetrator, the state took over the responsibility of reparations from all perpetrators (state and non-state actors) to provide them with a remedy. This position in consistent with international human rights law, that although an amnesty can extinguish criminal and civil responsibility of perpetrators, the state must then provide some form of reparations to victims. The South African Constitutional Court in the AZAPO case agreed which such a position, finding that if only criminal liability was extinguished under an amnesty, perpetrators would not tell the whole truth so as to avoid civil liability.
Similarly under the European Convention of Human Rights it is difficult to imagine that any form of amnesties other than a conditional one would be deemed compatible with the convention. Article 2 and 3 require an effective investigation and the right to remedy is enshrined in Article 13 of the European Convention of Human Rights, which requires every individual to have recourse to an effective remedy before a national authority if their human rights have been violated. Importantly, the European Court of Human Rights has held in Kudla v Poland that the right to remedy does not enable individuals to have a particular outcome or to challenge the lack of domestic laws, just to have a judicial mechanism in place to obtain a remedy. The Court has not explicitly stated the requirements of Article 13, instead it allows states a margin of appreciation in this regard. In short, while the European Convention does not establish a right for victims to claim any particular remedy, it does suggest that an amnesty cannot extinguish their right to some form of remedy before a national authority, of which a reparation mechanism would likely satisfy.
CHALLENGES FOR REPARATION MECHANISMS
In many post-conflict societies, conflict may have devastated the domestic economy, infrastructure and judicial system leaving little or no resources to provide reparations to victims. In such cases the government may prioritise more symbolic forms in conjunction with the amnesty laws, such as the construction of memorials, public apologies and reform of government institutions, with small exemplary amounts of money to victims to acknowledge their suffering. Alternatively the state can spread the payment of compensation of victims over a number of years, such as pensions to spouses of those disappeared during the ‘Dirty War’ in Argentina, educational scholarships to surviving children, or financial bonds to those illegally detained, which paid victims interest every year as government debt and can be exchanged at any time for the market price or at the end of their term for their total value by the state. Further challenges with reparation programmes involve: demarcating which past violations will be remedied; evidential levels which individuals will need to show for a claim; deciding on which type of reparations are appropriate; devising mechanisms to assess the impact of atrocities on gender, age, the proximity of families members who are entitled to reparations and other factors; how to identify victims who do not come forward; how to deal with numerous victims; and how to determine responsibility of different actors.
REPARATIONS IN NORTHERN IRELAND
In contrast to other societies moving out of conflict, the term reparations have been notably absent from discussions around dealing with the past in Northern Ireland. Some may put this down to free health care provision through the NHS, counselling and rehabilitation service through victim organisations supported by the state through the newly created Victim and Survivor Service, or compensation through the Compensation Service mentioned above. That said the provision of support to victims is only a service, not a right, in that individuals have no legal entitlement to them. Furthermore, they do not hold those responsible for the victims’ harm to make reparations, nor do they offer effective remedy of victims’ harm through different types of reparations.
When the Consultative Group of the Past (CGP) recommended a ‘recognition’ payment to all those killed during the conflict, it was met with fierce opposition, which ultimately led to the shelving of the entire report. While recognising those individuals who were members of paramilitary organisations killed during the conflict as victims was found to be too unpalatable for many, the reality remains that many families of paramilitaries will also have suffered economic hardship, grief and possibly trauma as a result of the death of such individuals and the question remains whether the past actions of those killed completely absolve society from its responsibilities with regard to reparations for those left behind. The CGP proposals also limited reparations to compensation and victims as to those who were killed, excluding the tens of thousands injured during the conflict, many of whom continue to suffer, and this has been widely viewed as a mistake.
The experience in a number of Latin American countries, such as Chile, Argentina, and Peru, suggest that reparations should be connected to other transitional justice measures to avoid compensation being considered ‘blood money’ or to buy the silence of victims. Best practices would suggest that using reparations with truth commission can help identify victims, depoliticise reparations, and support reconciliation measures in repairing the harm suffered. In countries such as Peru, state forces have been able to claim reparations, but only if they had not already received awards for death or injury. In Peru, members of terrorist groups were excluded from reparations. However, in the Castro Castro Prison case the Inter-American Court of Human Rights found that convicted terrorists unlawfully killed by state forces in a prison attack should be compensated and their names added to the memorial of all those killed during the conflict, The Eye that Cries. Together these principles support generally the position of the Consultative Group on the Past, but states can reduce the amount or bar individuals who committed crimes from claiming reparations.
For victims of conflict or gross violations of human rights, reparations are a necessary part in remedying their harm alongside determining the truth and establishing accountability (broadly termed ‘justice’). While at first glance amnesties may seem to be in conflict with reparations, in practice, they can complement each other in establishing peace whilst redress the suffering of the past. Key to maximising victim satisfaction with amnesty laws is to ensure that conditional amnesties adequately balance victims’ interests with more public interests of peace, security and reconciliation, while ensuring that their harm is effectively remedied. Challenges remain in Northern Ireland in overcoming the politics surrounding the key elements of reparations of recognising victims (acknowledgement), attributing responsible, and finding the funds to offer a broad scope of redress.