“Things that Money Alone Cannot Buy:” Defining Reparations in Cases of Sexual Violence

Senior Associate, Reparative Justice Program

4/12/2017

In my work on reparations around the world, I have seen the suffering of victims of sexual violence committed during armed conflict, political violence, or state repression, as well as their expectation of acknowledgment. I have also seen how little acknowledgement and protection victims often get from courts.

It is not only a problem of accessibility and the excessive formalism of the courtroom, but also of lack of an adequate response to the consequences of sexual violence through either the process or the decisions. One of the difficulties is that often courts only understand reparations as a compensation payment, not addressing more fundamental issues in terms of symbolic recognition and of addressing the consequences of the violation on the lives of victims several years after they were committed. The challenge only increases when there are few domestic precedents for deciding how to provide redress in such cases.

The briefing paper that I recently authored on the topic, "Getting to Full Restitution: Guidelines for Court-Ordered Reparations in Cases Involving Sexual Violence Committed during Armed Conflict, Political Violence, or State Repression,” is intended to serve as a helpful guide for judges, prosecutors, and advocates in defining reparations that can come closest to providing “full restitution” to victims of these crimes.

It explains that national courts can draw from decisions made by international courts or some courts of other countries that have faced similar situations. While they may not be obliged to follow these decisions, they may offer some guidance in restoring victims’ rights.

We decided to examine the existing decisions on reparations more closely – and provide guidelines and reference points for those working on this area of reparative justice – because we thought that national courts could adapt and apply some of the principles and reasoning used by those courts in responding to victims.

Adequate and Effective Reparations

Experience shows that monetary payment alone cannot compensate sexual violence committed on a massive scale, particularly when such crimes are accompanied by other forms of violations affecting entire communities. A single payment to those victims who could successfully sue the state has little ability to respond to the personal and community harm caused, or to the stigma or ostracism that victims of sexual violence often suffer.

International law has developed the notion that reparations must proportionally respond to the consequences of the violation, taking into consideration all the dimensions of harm victims have suffered. Statutory definitions that limit reparations to a financial payment or to a limited amount may constitute a form of injustice because they neglect harms that go beyond the reach of monetary compensation.

When cases of human rights violations involving sexual violence are brought to trial, courts have an obligation to consider how to use the reparations it orders to affirm the dignity of victims, address the current consequences of their violations, and facilitate their acceptance in their communities. These are typically things that money alone cannot buy. Judges, therefore, must assess the different forms of harm suffered and listen to the victim to decide what should be reparatory in a case.

"Experience shows that monetary payment alone cannot compensate sexual violence committed on a massive scale."

The Gender Dimension of Sexual Violence

The effects of sexual violence are different for male and female victims, and courts must consider these differences when awarding reparations. In both cases victims might suffer stigma and rejection, but perhaps of different natures.

The Inter-American Commission of Human Rights recognized in a case of rape of an indigenous woman by the Mexican military that she faced resistance, silence, negligence, harassment, fear, re-victimization, and had to confront a judicial apparatus not interested in seeking those responsible for the violation.

Moreover, while both male and female victims are subject to physical harms that can have serious consequences, courts have the obligation to examine the specific harms and tailor reparations to meet victims’ needs, considering in their assessment the difference that those harms might have depending on their gender. This extends to the obligation to fulfill the rights of women who raise children born of rape.



Rehabilitation as Reparations

Medical, psychological, social or legal services are other forms of reparations that can complement restitution or compensation. They can be particularly important for victims of struggling to recover from the long-term effects of sexual violence.

I have seen in Côte d’Ivoire, for instance, how counseling and other forms of rehabilitation can help victims overcome the isolation and trauma, strengthening their self-confidence and helping them work with other victims. Additionally, victims demand to be agents and not just passive recipients in these processes, as they have a lot to offer too.

Education and Affirming Victims’ Dignity

Access to education, through scholarships, vocational training, or other forms, can also have a transformative effect on the lives of victims and their children, offering them tools for a sustainable recovery in the wake of a violation.

Education can be seen as a form of social rehabilitation as well as a form of compensation for particular consequences of violations suffered―or even as a way of affirming the dignity of the victim.

I have seen time and again that one of the top priorities of adult victims with children is providing a better life for their children. Education is often seen as important way to ensure that the next generation does not suffer the same levels of poverty and marginalization they often have.

In one of its earliest cases, the Inter-American Court of Human Rights (IACHR) recognized education as a form of compensation, ordering educational opportunities alongside cash payments to relatives of seven members of an ethnic minority community disappeared and executed by Suriname state agents.

In finding that most of the children of the victims lived in an isolated and poor village where the health care center and school were closed, the court ordered both the center and school to be reopened and staffed. The decision benefited not only these children but also the whole community.

"I have seen time and again that one of the top priorities of adult victims with children is providing a better life for their children. Education is often seen as important way to ensure that the next generation does not suffer the same levels of poverty and marginalization."

Symbolic Reparations and Social Acceptance

Recognizing that wrongdoing took place – and who is responsible – is a crucial component of reparations. Efforts to restore the dignity and reputation of victims, including through public apologies, may be of particular relevance in cases of sexual violence.

In some situations violations committed against a person or a group of persons can lead to social stigmatization, resentment by members of their community, and other forms of social rejection. In fact, victims may even be blamed for the violations they suffered, which can result in cascading consequences. These consequences can be particularly acute if the victim has had strong links to his or her community, as is frequently the case for members of indigenous communities.

However, courts should consider the protection of victims, the risk of stigmatization in their communities, and the need for victims to be accepted by their communities.

In judicial cases it is possible that the communities already know about the violations suffered by the victims or that the victims, who have gone to court of their own volition, have already decided to make public the violations they endured. However, none of this can be taken as a given, and the situation and concern for each victim should be carefully assessed, including verifying their understanding of the risks.

If victims are ready for this, the court could explore ways that public acknowledgement could restore the dignity and reputation of victims.

For instance, the IACHR’s Rosendo Cantú et al. v. Mexico case involved Valentina Rosendo Cantú, a girl from an indigenous community in Mexico, who was raped and tortured by military personnel in 2002. The violation rose to the level of a human rights violation because of the lack of a response from the government.

To counter the denial, the court ordered the government to organize a public ceremony during which it would acknowledge that the crime against Rosendo Cantú had taken place, and Ms. Rosendo was part on defining the content of that ceremony. The decision highlights the ability of symbolic reparations to help victims recover from some of the consequences of the violations suffered, particularly social stigma and rejection.

The most acute cases of stigma or rejection occur when violations affect social or community values, as can happen with sexual violence and forced recruitment. In these circumstances, reparations must respond to social dynamics, as they did in the case of the forced recruitment of 309 children in Colombia. A national court not only provided compensation to the direct victims, but ordered measures for preventing forced recruitment, including building a community center to serve as a school or a cultural space.

Beyond Money

Victims of human rights violations – including those who endured sexual violence – deserve justice that responds to their needs. Courts have an obligation to listen to these victims in deciding on reparations that respond to the full breadth of the impact of these crimes. As these examples show, that means reaching beyond financial payments and striving for true justice on behalf of victims, their communities, and the society at large.


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