Transitional Justice: Reparations as Entitlement
Dr Gyan Basnet
‘Transitional justice’ is the name applied to schemes in post-conflict societies that aim to address issues arising from violations of human rights committed during the conflict. Prosecutions and institutional reforms may often attract greater attention, but reparations play a critical role in ensuring a smooth transition to a peace that respects human rights. Reparations consist of ‘dignifying the victims through measures that alleviate suffering, compensate social, moral and material loss, and restore their rights as citizens’. This comprehensive and broad understanding of victim reparations is consistent with contemporary standards in international law, as expressed in the United Nations Basic Principles.
Within the concept of transitional justice, reparations are actions taken by the state to redress gross violations of human rights and humanitarian law through the administration of some form of compensation or restitution to the victims. They are the only mechanism of transitional justice that directly addresses the plight of victims, and they must be provided to individuals who have actually suffered a violation of their rights. It is argued that failure to provide ‘timely and adequate reparations endangers the credibility of the peace process. It fundamentally violates victims’ sense of justice to see the lives of the perpetrators untouched by the transgressions while their own lives have been severely disrupted’.
The principal objective of reparations is to provide compensation in relation to the harm suffered. Where serious crime has been committed, reparations may focus on broader objectives such as reducing social disharmony, fostering trust, and promoting social re-construction. Just as establishing mutual trust in society is both a condition and a consequence of justice, so reparations should be designed to build trust and faith in the state. However, reparations should never become payments in exchange for silence or acquiescence on the part of the victims.
Justice for the victims of conflict is crucial if a lasting and peaceful solution is to be achieved. Only if victims are materially and morally repaired can communities experience durable peace, justice, and reconciliation, and put behind them the conflict that has disrupted their lives for years. There are some pertinent questions to be asked in our own context today. Despite a long delay in establishing a Truth Commission, what have we done so far to address the claims of victims of the conflict? Have we compensated them in the established manner? Do we have any long-term mechanisms for addressing their needs? Positive answers are, I fear, highly unlikely today.
Not a Charity
Reparations can be symbolic as well as physical. They can be in the form of a public acknowledgement or apology for past violations, indicating a state and social commitment to respond to former abuses. The form of reparations can include financial compensation to individuals or groups, restitution, rehabilitation, satisfactory guarantees of non-repetition and access to social services such as healthcare or education.
In designing and implementing the reparations programme, victims must be invited and given plenty of opportunities to be fully involved. The programme must be adequate, effective and prompt and also link closely with social, economic, and political and investment plans. Special attention should be given to the claims of groups of victims who historically have been marginalized such as minorities and dalits.
Reparations seek to recognize and address the harm suffered by victims of systematic human rights violations. Such victims are entitled to obtain adequate and effective reparations that are proportional to the harm that they have suffered. In international law the foundations of the right of victims to reparations can be traced to several human rights instruments, universal and regional in scope, and to case law and jurisprudence in the courts. The International Covenant on Civil and Political Rights 1966 requires explicit reparations in the form of compensation for victims of unlawful arrest or detention and the miscarriage of justice. The Convention against Torture establishes an obligation of each state party to the Convention to ensure that its legal system provides for the redress of victims of torture with an enforceable right to fair and adequate compensation, including as full as possible rehabilitation. Both the European and the Inter-American Courts of Human Rights have, in their case law, defined the content and scope of the duty of states to compensate the victims of human rights violations for which they can be held responsible. The right of victims to receive reparations is also enshrined in Article 75 of the Rome Statute of the International Criminal Court. Under international law, gross violations of human rights and international humanitarian law give rise to the right of victims to reparations, and there is a corresponding duty on the part of states and other actors that are responsible for the harm suffered to make those reparations.
What of Nepal?
In Nepal's 10-year conflict, both State and Maoist forces committed gross violations of human rights, including mass killings and rapes. Statistics and reports show that the conflict witnessed over 18,000 deaths and a multitude of crimes such as kidnapping, extortion, and arson, demolition of infrastructures, possession and destruction of property, extra-judicial killings, displacement, forced recruitment, and the disappearance of hundreds of people. The Comprehensive Peace Accord signed in 2006 affirmed the commitment of both parties to ensure that impunity would not be protected and that the rights of victims and/or their families were to be safeguarded. The present Maoist-led government continues to practice the culture of impunity, granting amnesty to alleged criminals and withdrawing cases of alleged crimes against humanity. The victims have been abandoned. In treating the violators as political criminals, the government has undermined the basic legal rights of every victim.
We have five different kinds of victim as a result of the conflict: those who lost loved ones; those whose loved ones simply disappeared; those who suffered rape and other kinds of sexual violence; those who were internally displaced as their property and lands were confiscated; and those who are now disabled. This broad definition of ‘victim’ includes both individuals and communities; it addresses physical and psychological injuries, economic loss, and various violations of fundamental human rights. It encompasses crimes punishable under our penal code as well as those covered by international human rights and humanitarian law.
The Government of Nepal did offer victims some benefits, but ‘relief‘ has replaced reparations not just as an interim arrangement but more like a substitute for them. According to a statistic, the Interim Relief Programme (IRP) has provided benefits to over ‘30,000 people who were categorized as conflict victims and approximately 80,000 internally displaced persons. Accordingly, 100,000 Nepalese rupees went to the nearest beneficiary of those who were killed, or who were forcibly disappeared by parties to the conflict; an extra NPR 25,000 each went to the widows of men who died or the wives of those who were forcibly disappeared during the conflict; scholarships went to children of persons killed, forcibly disappeared, or seriously disabled during the conflict; skills development training was made available to eligible conflict victims; and compensation was available to persons and institutions whose real or personal property was lost or damaged during the conflict’. However, lack of any evidence of implementation of these provisions means that it is difficult to know if any victim has actually benefited from this scheme. There is no formal record available.
The government’s IRP included no measure that acknowledged the accountability of the state, no information about the forcibly disappeared or about the circumstances in which other violations were committed, and no investigation or prosecution of individuals responsible for the most serious crimes. The IRP did not attempt to ask whether victims had lost income or land, or had experienced what might constitute a human rights violation—such as sexual violence or the denial of social or economic rights. The government did not categorise victim information by caste or ethnicity, and gender was regarded as relevant only for identifying the widows or wives of those who had been killed or forcibly disappeared.
Truth Seeking and Reparations Must Go Hand in Hand
A well-designed reparations programme should help to establish justice precisely because it results in material recognition of what the country owes to those whose fundamental rights have been violated. Reparations must be seen as a major step towards demonstrating that all citizens have the right to live in a country that protects their fundamental human rights and takes steps against any who seek to violate those rights. Reparations are essential for the construction of a social bridge in the war-torn society. The right to them is not dependent on the prior establishment of a Truth Commission, or on the prosecution of perpetrators of violations, but the reparations programme can be much more effective if these measures have already been put in place.
The combination of chronic poverty and social inequality in the country should not be ignored in applying transitional justice mechanisms. The reparations programme should have an impact on and be informed by the social and economic conditions of the victims that it intends to repair. A broader approach to reparations, one that looks at the circumstances that may have made victims vulnerable to violations, would consider the causes of conflict, the social and economic conditions of potential beneficiaries—including communities and groups that might benefit from collective reparations—and how these might overlap with long-neglected health, education, and other development needs.
In Nepal, any future reparations policy will have to consider whether a combination of community and individualized but long-term reparations measures are more appropriate, given the length and severity of violations suffered by Dalit and Janajati victims. This will require the state to identify and register victims according to their economic status, caste, and ethnicity—an approach that was not followed by the IRP. Ending impunity, ensuring accountability, and encouraging legitimacy are essential if we are to achieve a smooth and stable transition from past conflict to sustainable peace. Consensus politics have so far dis-incentivised transitional justice.
Policy circles in Nepal need now to work hard to reform and build the capacity of the country’s justice and security sector institutions in order to facilitate the establishment of transitional justice mechanisms capable of filling the rule of law vacuum so evident in the current state of affairs. The challenge lies in confidence-building exercises where justice, peace and democracy are not seen as conflicting objectives but as mutually reinforcing imperatives.
(Basnet, who holds a Ph.D. and an LL.M degree in International Human Rights Law at Lancaster University, U.K, is a Constitutional Lawyer in the Supreme Court. Email: gyanbasnet@aol.com)
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