By Jenny Leigh McWilliams and Jordan Hawthorne
(Third Year Law Students at Queen’s University Belfast)
The purpose of reparations is to recognize and redress the suffering of victims of mass human rights violations. Reparations endeavour to remedy victims’ suffering by returning them, as far as is possible, to the position they were in prior to the harm. Article 1 of the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power states that the definition of ‘victim’ encompasses both individual and collective victims. Thus, reparations can be awarded on an individual and collective basis.
Individual reparations center on remedying the harm caused to specific persons. These usually take the form of restitution measures (such as restoration of liberty) and/or compensation. The primary advantage of such reparations is to acknowledge victims’ suffering and to provide them appropriate remedies. By focusing on the suffering of an individual, these reparations recognize a person’s distinct status as a victim, and acknowledge their personal suffering. As a result, victims are more likely to have a sense of justice being achieved.
Despite the above, individual reparations can be problematic. In particular, funding can be a significant issue due to the large number of victims. In most cases, perpetrators are unlikely to have the financial capacity to fund an adequate reparations scheme. Even where perpetrators do have the means, their assets may be tied up and therefore inaccessible to victims until the perpetrator is convicted (see for example the case of Jean-Pierre Bemba before the International Criminal Court). To combat this issue, the Rome Statute included the Trust Fund for Victims (TFV), to fund reparations where convicted persons have no identifiable assets. However, the resources of the TFV are inadequate in providing sufficient awards for individual victims. For example, the TFV was only €1.8 million in reserves to split between the victims of the Lubanga and Katanga cases. Due to the large number of victims, this is likely to amount to symbolic awards to victims, which is unlikely to repair adequately the harm caused. Furthermore, individual assessment takes time, making the process of awarding reparations before a court less efficient.
Individual reparations can also result in the creation of a hierarchy of victims due to the need for an individual assessment of each claim. By differentiating between victims a sliding scale is formed whereby some victims suffering is regarded as greater: this creates inequality, a possible resentment in communities. In Northern Ireland the lack of victim differentiation in reparation proposals has caused tension in the peace process. In 2009, the Eames-Bradley Report proposed that the families of victims who died as a result of the conflict in NI should be awarded a one off payment of £12,000. This amount was to be awarded to the families of all victims, including civilians, members of the security forces and paramilitaries. This caused public outrage as many felt that the lack of demarcation equated innocent people with terrorists.
Given the numerous problems inherent in individual reparations, it is often suggested that a collective approach would better facilitate restorative justice. Collective reparations focus on remedying the harm of communities as a whole, bypassing issues of funding, efficiency and the creation of a hierarchy. This type of reparations can take the form of public apologies, truth commissions, construction of memorials (such as the Holocaust Memorial pictured above), education, and other projects which benefit victims as a group. As a result, collective reparations reach a greater number of victims, aiding the healing and restoration of transitional societies.
While collective reparations remedy some shortcomings of an individual approach, they can also have drawbacks. Collective reparations have been criticised of being impersonal and overlooking the particular suffering of an individual. They also run the risk of morphing into community development projects, distorting the importance of acknowledging victims and remedying their specific harm, by responding to the general needs of the community. As such, there is potential for perpetrators to benefit from the reparations, for example, in the case of hospitals and schools being built. This can create a sense among victims that justice has not been served. In addition, because collective reparations are not able to respond to the specific needs of individual victims, they can result in the marginalisation of vulnerable groups and minority groups who have additional or different needs. In the specific case of apologies, there is a risk of insincerity, inadequacy and ulterior motives, which again can effect a victim’s perception of justice being delivered. Reparations are supposed to focus on redressing the harm suffered by victims, and collective reparations can detract from this purpose by diminishing the recognition of individuals’ suffering.
As illustrated, both individual and collective reparations have benefits and limits-neither approach is perfect. The Office of the High Commissioner of Human Rights has rightly stated that one cannot carry the whole weight of a complicated transition. Thus, one discourse should not be used over the other; both types of reparations should be used intermittently and complement each other. A hybrid approach to reparations is portrayed in the case of the Plan de Sanchez massacre. It was held that both individual and collective reparations were necessary to effectively remedy the harm of victims. Surviving victims and the relatives of those who had been killed received $25,000 each, with further money awarded to rebuild the village. Monetary reparations were also awarded for a housing development programme, a healthcare centre, Mayan education, and infrastructure. Furthermore, there was official acknowledgement of the responsibility by the state and a chapel was built to memorialize the deceased victims. By combining both types of reparations the Guatemalan government appreciated the specific needs of victims, while simultaneously recognizing the need to restore the community.
Mass atrocities occur in unique political and social contexts that require reparations to be tailored appropriately to victims’ different needs. As a result, assessment will be required to distinguish victims who warrant individual reparations from those who can be restored through collective measures. The Kenyan Truth, Justice and Reconciliation Commission provides a good model on how to determine which victims require which type of remedy. The Commission categorized victims according to the severity of harm they had suffered. Victims who had suffered violations of their right to life, their personal integrity (rape and torture) and died during forced displacement qualified for individual reparations. Collective reparations were also allocated to these victim as well as those who had lost land/had their land destroyed, and those who had been subjected to systematic marginalization. This system illustrates an effective way of dealing with a mass victimization, combining individual and collective reparations, while simultaneously preserving victim-centeredness, without undermining the economic development of a country. Such an approach could be adapted elsewhere to serve the victims of mass atrocities in their transition out of conflict.