Court-Ordered Reparations for Sexual Violence Must Go Beyond Money to Truly Help, Says New ICTJ Paper

4/12/2017

NEW YORK, April 12, 2017— A new briefing paper from the International Center for Transitional Justice provides guidance for national courts issuing decisions on redress of human rights violations involving sexual violence. It encourages judges, advocates and prosecutors to consider the full range of possible forms of redress when ordering reparations for victims, to make use of relevant national and international decisions in interpreting domestic laws, and to pay particular attention to how sexual violence may affect different victims.

The 20-page paper, "Full Restitution: Guidelines for Defining Reparations in Cases Involving Sexual Violence Committed During Armed Conflict, Political Violence, or State Repression", emphasizes that judges should aim to establish conditions that address the full range of harms caused by the violation to victims, family members and, in some cases, whole communities.

This recommendation follows the basic principle of “full restitution,” which is the legal standard applied by most courts in attempting to return the victim to the situation that existed before the crime was committed. But in cases involving particularly traumatizing and stigmatizing violations like sexual violence, it may be difficult to accomplish.

“With some types of violations, full restitution in the traditional sense is just not possible,” said Cristián Correa, author of the report and ICTJ’s Senior Associate for Reparative Justice. “In the crudest terms, you can’t bring a loved one back to life or erase all the emotional, physical and psychological scars of crimes that a survivor of rape or torture must live with.”

Part of the problem is that in these cases courts have traditionally ordered reparation only in the form of compensation, or financial payments. Such decisions may not respond to the many different dimensions of harm that can result from sexual violence, including family abandonment, social rejection and missed social and economic opportunities, including education.

According to the paper, providing reparations only in the form of a cash payment can result in an unfair decision in some cases, because it would not address underlying problems, such as historic inequality or discrimination, which may have contributed to the violation in the first place.

Other forms of reparations that could be considered, in consultation with the victims and their representatives, include rehabilitation through medical and psychological care as well as legal and social services (a particularly relevant form of reparation for victims of sexual violence), guaranteeing access to education for victims and their family members and symbolic forms of reparations, such as official apologies and memorialization.

For example, in the Rosendo Cantú et al. v. Mexico case, the Inter-American Court of Human Rights ordered a range of different forms of reparations for an indigenous woman who had been raped by members of the Mexican Army and forced to leave her community, with her daughter, after her husband and family rejected her as a result.

It ordered the state to provide appropriate care for her and her daughter’s ongoing physical and psychological needs – and to publicly acknowledge the crime in Spanish and the local Me’paa language at a public ceremony attended by Cantú and her daughter. Scholarships for Cantú and her daughter also formed part of the judgment.

In another case involving the forced recruitment of 309 children by a paramilitary group in Colombia, the Superior District Court of Bogotá ordered the leader of the group to provide reparation to the victims mainly in the form of compensation for lost wages, and ordered the government to start a program to strengthen community organizations in the victims’ communities. It also ordered the state to build a community center where the paramilitary base had been, to serve as a school or a cultural space, benefiting the victims and the whole community.

The paper encourages judges and advocates to consider relevant national and international precedents and decisions, and other sources of international law, when responding to unique situations that perhaps have not been covered by domestic law. This includes considering decisions in cases that did not involve sexual violence, but where the court defined reparations more comprehensively.

The paper stresses that international law need not already be formally incorporated into the domestic legal system for courts to make use of it. Instead, judges and advocates may interpret existing domestic law drawing from international norms and precedents as guides or references.

“A judge would not be acting alone or breaking new ground by defining reparations in a more comprehensive way, by applying the reasoning behind rulings like the Rosendo Cantú case or the Colombian case,” said Correa. “The court would still need to base its decision on the strict implementation of applicable domestic law and detailed analysis of the victims’ condition.”

The paper stresses that, because sexual violence can have different impacts on victims depending on their gender, age, ethnicity, religion, and socio-economic status, the court should consider victims’ particular circumstances when defining specific reparations.

For instance, because victims commonly confront “blaming and shaming” and social rejection as a result of sexual violence, the court in the Rosendo Cantú case factored in these obstacles in ordering reparations in the form of public acknowledgment and memorialization — to make it clear the state, and not the victim, was responsible for the crime. Reparations should also address the rights of children born of rape, who may also suffer rejection.

While many of the decisions analyzed in the paper come from the Inter-American Court of Human Rights, which has been at the forefront of court-ordered reparations for human rights abuses, the paper also analyses decisions, commentaries and guidelines regarding reparations from the International Law Commission, the UN General Assembly, the UN Human Rights Committee, the African Court of Human and Peoples’ Rights and Peruvian and Chilean laws.

Media Contact

Refik Hodzic, Director of Communications, ICTJ
E-mail: rhodzic@ictj.org Phone: +387603575250

PHOTO: Valentina Rosendo Cantú argued for reparations before the IACHR. (Tlachinollan)