On the International Day for the Right to Truth we spotlight one of the most powerful ways...
In this edition of the ICTJ Program Report, we look at ICTJ's work on reparations in countries around the world.
Reparations seek to recognize and address the harms suffered by victims of systematic human rights violations. ICTJ’s Reparative Justice program provides knowledge and comparative experience on reparations to victims' groups, civil society and policymakers worldwide.
Below, director of ICTJ's Reparative Justice Program, Ruben Carranza and Reparative Justice Senior Associate Cristián Correa discuss the importance of reparations programs working in concert with other transitional justice mechanisms, such as truth seeking and criminal justice. In addition to giving a detailed look at ICTJ's current projects and research around the globe, Carranza and Correa go in depth on the groundbreaking reparations programs in Chile and Argentina, explain how truth commissions work with reparations programs, and offer some insight into challenges ahead for places like Colombia and the DRC.
Reparations as a transitional justice mechanism has to be seen as a series of steps: some are decisive strides and others that are more incremental, but all lead toward the fulfillment of the right of victims of human rights violations to reparation.
It’s important to disabuse ourselves of the assumption that transitional justice is a continuum where reparations programs necessarily follow from the work of truth commissions or that reparative justice can be realized by a simple court order.
Measures that have a reparative impact have been implemented in many different contexts, from the early examples of Argentina, Chile or even South Africa to the more recent transitions in Sierra Leone, Timor-Leste, Morocco, Peru and Nepal. All of these countries have tried to respond to the unique needs of specific groups of victims, such as the families of the disappeared, or have offered benefits across several categories of victims, such as compensation for torture, killing, or sexual violence.
In all these cases, what we often describe as “reparations programs” are really a set of policies adopted over a period of time by governments and international justice institutions -- that, ideally, acknowledge that the rights of victims have been violated and attempt to repair the consequences of those violations in symbolic and material ways.
In practice, however, implementation has been less than ideal and in many instances, either the element of acknowledgement has been absent, or the material impact on the lives of victims has been limited.
The acknowledgment of responsibility is an essential component of reparations, and acknowledgement serves as the connection between reparation programs and other transitional justice measures like truth seeking, memorialization, criminal justice, and guarantees of non-repetition.
|Working in concert, these elements help provide meaning and seriousness to the reparations effort. However, in practice all these components are rarely implemented in an integrated way. So, our challenge then is to determine how to advance a process of reparations in the absence of supporting transitional justice policies.|
Invariably, the absence of acknowledgement as an element of reparations is founded on the misunderstanding that compensation, if at all given, is in itself sufficient as reparation. Some governments offer money to victims, unaccompanied by any expression of responsibility for the State’s failure to prevent the violations that happened or by any commitment that those violations will not happen again. Worse, some political leaders believe that reparations can be substituted with development programs.
This belief overlooks the fact that all citizens, whether victims or not, are entitled to the economic and social well-being that development is meant to bring, but not every citizen would have suffered the kind of serious human rights and humanitarian law violations that reparations programs are meant to acknowledge.
This is not to say that reparation can never take the form of the services and goods that are associated with basic development programs such as education, health care, housing or livelihood. But the form cannot itself be the substance of reparations; without any other component that links the delivery and content of these types of benefit to the specific needs and experiences of victims, they will fall short of providing reparative justice.
ICTJ is focused on assisting all the stakeholders involved, from governments and victims to civil society, donors and international justice institutions, in designing and implementing reparations programs that incorporate acknowledgement, maximize the impact of reparations measures on victims’ lives and take into account the political and practical challenges in their design and implementation. It includes also paying close attention on how truth seeking, criminal investigations, policies on remembrance, and institutional reforms are implemented, as they are part of the same message that provides meaning to reparations.
In the past, we provided technical assistance to reparations policymakers and victims groups in Peru, Sierra Leone, Ghana, Morocco, Iraq and Indonesia (Aceh) – where reparations programs of varying comprehensiveness have been or are being implemented, including a four years follow up study on how collective reparations were implemented in Peru and perceived by communities who benefited from them. We provided expert knowledge to civil society organizations, international actors and UN agencies in Timor-Leste, Liberia and Sudan that are involved in defining reparations policies or recommendations.
We are presently assisting different stakeholders in contexts and countries where complex issues in formulating or implementing reparations have emerged. We have provided assistance to the “Victim Assistance and Reparations Unit” within Colombia’s Department of Social Prosperity on the steps needed for implementing the 2011 Victims and Land Restitution Law.
|In Nepal, technical assistance solicited from ICTJ by the Ministry of Peace and Reconstruction (MoPR) contributed to important changes in the guidelines governing an interim relief program (IRP); a recent publication identified the IRP’s gaps and the ways that a comprehensive reparations policy can help address the root causes of conflict in the country.|
We provided the National Constituent Assembly in Tunisia as well as the Ministry of Human Rights and Transitional Justice with in-depth comments during the drafting of recently passed reparations legislation and have been working with newly-organized associations of former political detainees, victims and victims’ communities and women’s groups in their capacity-building activities. We continue to provide input regarding the implementation in the Occupied Palestinian Territory (OPT) of registration procedures being conducted by the UN Registry of Damages connected with the building of Israel’s West Bank wall.
In Africa, we recently offered our recommendations to the Ugandan government’s Justice, Law and Order Sector (JLOS) inter-agency team working on how a national reparations policy can begin to be implemented.
In Kenya, a 2011 study examining the reparative justice needs of victims of different periods of repression and political violence in the country continues to inform debates involving reparations, covering victims of post-election violence in 2007 to torture victims under earlier regimes to survivors of violations committed in the suppression of the Mau-Mau rebellion.
Our Côte d’Ivoire work has started with presenting a proposal for a framework to define reparations and to how to coordinate the efforts being made by the various State agencies have in providing urgent as well as comprehensive reparations, from the truth commission (CDVR) to the Secrétariat National à la Solidarité et aux Victimes de Guerre (the National Secretariat for Solidarity with War Victims) or SNSVG, or potentially, the Trust Fund for Victims (TFV) of the ICC in connection with Gbagbo case.
In South Africa, we drafted a comprehensive memorandum on the importance of an inclusive approach to providing health care and education that the South Africa Transitional Justice Network has used in their engagement with the government’s post-TRC reparations policies.
We recently met with judges and prosecutors in the military justice system in the DRC, as well as with finance, justice and budget officials and civil society organizations, to discuss ways to overcome the practical and political obstacles in enforcing court decisions awarding compensation to victims, and the possibility of ordering rehabilitation, restitution and judicial and security sector reforms as guarantees of non-repetition under existing Congolese law.
Along with our country-specific work, the Reparative Justice Program deals with reparations that come from criminal, civil or human rights litigation in both domestic and foreign courts. We have helped judges in the Extraordinary Chambers in the Courts of Cambodia (ECCC) define their mandate to provide moral and collective reparations. With the Colombia program, we analyzed the first decisions on reparations coming out of the Justice and Peace Law. We continue to be engaged with the likely implementation of the reparations order of the International Criminal Court in the Thomas Lubanga case. We drafted ICTJ’s formal submission in the Lubanga reparations proceedings, and have ongoing consultations with the Trust Fund for Victims (TFV), with the ICC Registry’s Victim Participation and Reparations Section (VPRS) and, with our DRC country program, we have been working with victims’ communities in eastern Congo and with Congolese human rights lawyers representing victims in the case.
Chile and Argentina did what few others had done: implementing reparations for a broad spectrum of victims, and addressing the consequences of the violations through comprehensive measures.
By “comprehensive,” we mean programs that offer forms of reparation aside from compensation, such as the specialized health care system for survivors and victims’ families in Chile or, in Argentina, the system of locating children of political detainees or the disappeared who were removed from the custody of their families. The cases of Argentina and Chile present three interesting factors:
That reparations implemented had the capacity, in terms of munificence to actually improve victims’ lives and address some of the worse consequences of the violations they suffered. In Argentina the amounts provided were substantial.
|This allowed the State to distribute the budgetary impact of an expensive reparations program over several years. In the case of Chile, reparations had been paid by pensions, which not only distributed the costs over several years, but also had the ability to guarantee that victims wouldn’t fall in poverty as they grew older.||
In Chile, the reparations programs also included a specialized and victims’ sensitive health care system; and a program for university scholarships for victims or their children.
Reparations in Chile and Argentina were implemented alongside significant efforts to acknowledge the truth, express acceptance of State responsibility, investigate and prosecute perpetrators of serious crimes, and reform institutions. In neither of the countries this has been perfect or a clear and continuous commitment, and there had been some serious setbacks since each of them initiated these policies, and those setbacks seriously affected the credibility of the reparations programs (and in some degree they still affect them).
However, in the long run both had achieved significant progress in these areas, if you compare them with Morocco, South Africa, Brazil, Guatemala, or Uruguay, making reparations credible. Also both countries had implemented policies on memory, through participatory process for building monuments and museums, which shows victims that the countries are trying to learn from their experience, and that they are not being forgotten.
These experiences were possible in part by the existence of active civil society and victims organizations, which keep the struggle for justice alive; by traditions of strong institutions; by governments that had understood that transitional justice shouldn’t be an area of political score counting; and also by political and economic stability. They are far from ideal, but they can show what can be done when transitional justice and the rights of victims are taken seriously.
It is not possible just to compare what has been done in some countries and set them as the standard for others without considering the different socioeconomic realities of them.
Assessing the extent to which countries have been able to fulfill the right to reparations, the “munificence” and comprehensiveness that has characterized the Argentine and Chilean examples has to be seen in the context of the capacity of those States to fund and implement their respective reparations programs.
Chile has invested around US$3.2 billion on reparations, including the relatives of 3,225 victims of forced disappearance and killing; 38,254 victims of political imprisonment and torture; and 114,225 victims of political dismissal from civil services or public companies. Argentina committed 1.17 billion Argentinean pesos in compensation for a total of 15,573 victims of prolonged and arbitrary detention and about 1.9 billion pesos to the families of 7,785 victims who were killed and disappeared, a time when the peso had parity value with the US dollar (but which later changed due to devaluation).
In contrast, many of the post-conflict and post-dictatorship countries, particularly in the global South, that have since tried to implement the recommendations of their own truth commissions or establish stand-alone programs to provide victims different degrees of reparative justice, have been constrained by the competing needs of their broader, impoverished populations and by the lack of administrative capacity to implement reparations that meets the “adequate, prompt and effective” standard set by the UN General Assembly in 2005.
Compared to Chile and Argentina, post-conflict countries like Sierra Leone, Liberia, Timor-Leste and Nepal face far more challenging economic and political obstacles in mobilizing the kind of resources and political support required to implement reparations. Without the US$ 3 Million contribution from the UN Peacebuilding Fund, in Sierra Leone (which matched the contribution with a $250,000 allocation from its own budget), the reparations program would not have taken off.
Nepal’s interim relief program, which provides compensation, medical care for the injured and education assistance for families of those who were killed and disappeared in the 10-year armed conflict between a Maoist army and the State, relied substantially on a $23 Million Emergency Peace Support Program (EPSP) granted by the World Bank. An interim reparations program implemented by Timor-Leste’s truth commission, known by its Portuguese acronym CAVR, similarly used $10 million in WB money originally intended for a Local Government Empowerment fund.
Nevertheless, the absence of political will to overcome these challenges is certainly a factor in itself, as resources had been mobilized by Timor-Leste and South Africa to provide reparations and benefits to veterans.
The relative success of the early reparations programs in Latin America, such as those of Chile and Argentina, are partly a result of what has been described as effective political coalition-building among post-dictatorship political leaders, victims groups and human rights organizations. Such a coalition for example, has been absent in South Africa, where post-apartheid governments have either opposed victims’ efforts to obtain reparations from perpetrators seen as complicit in apartheid-era abuses or denied victims’ groups the opportunity to participate in reparations policymaking. Similar networks are more difficult to cobble together in post-conflict settings, largely because tensions over identity, class or access to economic resources still simmer even after conflict.
The Cold War-era ideological struggles between left-wing political movements and right-wing dictatorships in Latin America contained many of the same economic and social issues that are embedded in some of the conflicts in sub-Saharan Africa and Asia that were later or are now being addressed by post-conflict transitional justice processes; but the dysfunctional and fragile State institutions, severely underdeveloped economies and continuing social and political tensions in these latter cases require approaches to reparations policy-making and implementation that need to take these challenges into account in a strategic way.
These challenges will likely emerge in attempts to implement reparations in more recent post-conflict and post-dictatorship countries such as Côte d’Ivoire, Uganda, Tunisia and even Burma. ICTJ’s reparations work in these countries will therefore take the Latin American experiences into account but just as importantly reflect their distinct legacies of human rights violations and economic disparities.
No single experience can offer answers to the complex questions offered by the Colombian context. However, in terms of reparations for victims, perhaps the main challenge of Colombia is not only reaching an agreement with FARC, but guaranteeing peace, security and conditions for people living in many areas of the country to exercise their social, economic and cultural rights.
|This requires establishing direct links of communication with local civil society organizations and victims groups, so they could have a stronger voice to protests abuses or even provide grounds for some form of vetting policy, especially at the local level.|
In addition, this requires a strong policy for building infrastructure and providing services in areas of education, health care, and economic sustainability to regions that had been practically abandoned by the State for decades.
The current land restitution policy offer some hope, if it is adequately accompanied by a rural development policy, but it is eloquent that its main risks for failure come from the threats that leaders claiming restitution are facing.
ICTJ has been providing technical assistance to the Victims’ Unit, responsible for implementing reparations in Colombia, providing lessons from these experiences. We have also just helped to train the Unit’s staff that are acting as link between victims and the different social and reparations programs that are available for them, which can play a critical role in helping victims exercise their rights and transmitting a message of acknowledgment that is key for reparations. But we are also assessing how the 2011 Land Restitution and Victims’ Law has been implemented to date, to identify lessons from the experience that could help improve some aspects.
The ability of ICTJ in providing technical assistance to the government, while maintaining its independence, is a critical asset. The process can benefit from having someone that could provide support, ideas and recommendations, as well as independent assessments and criticism of the policies implemented. Having a strong team in Bogotá, working closely with ICTJ thematic expertise that offer comparative experiences, is a good combination for providing qualitative assistance and independence with the needed local knowledge.
Reparations and the consolidation of peace requires some basic conditions of development of the regions historically abandoned, as well as of providing voice to the population targeted to get their feedback on how those policies are implemented.
The collective reparations program implemented in Morocco offer an interesting example. It included a development program for building basic infrastructure in areas deliberately targeted by the regime, as well as a fund for projects to be presented by civil society organizations located in those regions.
The collective reparations program implemented in Peru also offer some interesting lessons, especially because it was implemented in an expeditious way, having reached almost 2000 communities in six years. In the same period Colombia has not been able to finish complex policies designed for seven pilot projects. Complexity and comprehensiveness need to be balance with the ability to prompt implementation.
Collective reparations in Peru were implemented too promptly and lacked a stronger connection with regional development policies, but some middle ground, were reparations are linked with a regional development policy, needs to be reached.
Another lesson that the Peruvian case may offer is how to understand reparations. Peru suffered an internal armed conflict that was not short of cruelty and devastation, also for people living in rural and historical marginalized regions of the country. However, its Truth and Reconciliation Commission was able to put the conflict in perspective, acknowledging the different degrees of responsibility of the insurgent groups, as well as the State.
Reparations had been defined for all victims, and it is based on an acknowledgment of State responsibility. This helps visualize victims based on the recognition of their human rights, and not based on who perpetrated the crimes against them. As result, there are victims’ organizations in Peru that include among their members victims of the Shining Path together with victims of State agents. The recognition of the State’s responsibility and the equal stand of all victims might help in the peace negotiations, as well as in the implementation of reparations and land restitution policies.
Defining and implementing reparations in the DRC is a daunting challenge. As in the case of Colombia, together with the persistence of the conflict, the lack of minimum social and economic rights makes it impossible to define a reparations program that focuses only on compensation. The decision by the ICC in one case, among so many others, makes things even more complicated.
As Lubanga was charged and then sentenced for conscripting child soldiers, who are from his ethnic group, the Hema, reparations had been granted to Hema communities (still to be implemented), while most of Lubanga’s victims of other crimes, like massacres and rape, are from the Lendu ethnic group. This has left the Lendu without accountability or a sense of acknowledgment.
Reparations need to based on the recognition of the violations victims suffered, not the side they were on during a conflict. But when reparations are based on a single case, selected for purposes of criminal prosecution, limited to few victims, and worse, to victims who don’t constitute a representative sample of the totality of the victims who suffered under the perpetrator, reparations can increase tensions instead of contributing to peace, security and a general notion of justice.
Perhaps it is not appropriate to talk about lack of resources, but about how the allocation of resources is prioritized, and how to deal with competing needs.
When a government coalition cares about a constituent they find the way to prioritize them. Unfortunately, that happens more often with veterans of a struggle for independence from the governing parties than for victims, as are the cases of South Africa, Bosnia & Herzegovina, Kosovo, or Timor-Leste. In all these cases veterans had been prioritized over victims for receiving assistance, which shows that it is not always a question of resources.
However, the competing needs can pose a problem for reparations, when those needs are reconstruction, or providing basic services on health care or education to whole regions of the country.
Answering these questions requires examining the whole national budget, and not only the social budget. Reparations shouldn’t compete against education or health care, but the whole budget should be part of the examination, including salaries in the legislative of executive branches of government, or the armed forces. Moreover, in conditions of poverty reparations policies must be tailored with development policies, and not considered apart. This is what we are exploring in our work in Uganda, DRC, Tunisia, and elsewhere.
If reparations are defined as a long term process that provides sustainable support (which is what has more chances to improve the life of victims), sources of funding should also be part of policies that guarantee a continuing flow. Too often the creation of funds are promoted, which are good for guaranteeing one time payments, but not long or mid-term support like in health care and education. Funding strategies should be consistent with the economic development policy chosen by the country.
Imposing taxes to special activities can be seen as popular among victims, but it rarely happens. Authorities defining the economic policy may object imposing disincentives, as it had happened with the recommendation made by the Truth and Reconciliation Commission of Sierra Leone on taxing diamond mining. The provision has never been approved. Argentina made a blunt move when it provided significant amounts to victims through bonds of consolidation of public debt. It didn’t foresee also that in six years the whole economy collapsed, including the bonds market. Fortunately, most victims had sold their bonds by then.
Excessive hopes of receiving contributions from donors, the private sector, or of paying reparations through recovered assets from perpetrators or from corruption are also a problem. The reparations fund created by Sierra Leone has received only small contributions. The Peace Building Fund grants in Sierra Leone have been very limited to staggered projects or interim reparations with limited impact.
Morocco received support from the European Union for its policy for developing marginalized areas and collective reparations, but it was mostly the result of the special relationship that the EU has with Morocco and not something that could be expected to be replicated. The resources obtained from the fund of money recovered from corruption, and from the voluntary contribution of mining companies in Peru had covered only small amounts of the total costs of the very limited portion of reparations implemented there.
The extraordinary results of litigation and political action for recovering the assets of Ferdinand Marcos is an inspiring case, but the reparations program that will use those resources had only been approved recently, 27 years after the People’s Power revolution. The very limited assets recovered from demobilized paramilitaries in Colombia, which are required for receiving judicial benefits, were insufficient to fund the first court decision that granted reparations to victims of the massacres and other crimes they committed (the assets recovered covered only 18% of the amounts sentenced by the court, and the rest had to be paid from the national budget).
Perhaps the most reliable source is the national budget. A yearly based flow of resources can guarantee permanent or long term funding. This is also an argument in favor of reparations to be paid through services provided over years, several installments or pensions.
Truth commissions can provide important foundations for reparations programs that can help them achieve levels of comprehensiveness and complexity that could better respond to all victims and to the consequences of the crimes suffered.
By interviewing thousands of victims, truth commissions can make recommendations based on concrete assessments, with the participation of victims. They could also provide an opportunity to be listened, to tell their stories and to be acknowledged, which are important components of reparations and can differentiate them from relief or humanitarian assistance.
Truth commissions can also provide a narrative that put in perspective the individual stories of each victim and that can help include all victims, and not just the ones of one side, in a reparations effort, or can help prioritize those who suffered the most.
Finally, truth commissions can help build support for the significant political will that is required to implement reparations and allocate resources into it.
However, despite their importance, truth commissions are not essential for designing and implementing reparations programs. If the conditions mentioned above can be obtained through other process of consultation and participation, and if there is enough political will to acknowledge responsibility and include all victims, according to objective or shared criteria about the crimes suffered or their degree of vulnerability that could help prioritize in a balanced way.
Additionally, in some cases it might be good not to wait for truth commissions, at least for delivering some forms of interim relief or reparations, for those in most urgent need.
One of the most significant reparations program being implemented without a truth commission is the one in Colombia. After several fraught policies, the 2011 Victims and Land Restitution Law has established the framework for providing reparations for victims of all sides of the conflict, combined with humanitarian assistance, and including symbolic as well as material measures.
Other important experiences include the efforts to incorporate a reparations component to development policies of areas affected by conflict and historical neglect in Northern Uganda, through the Peace Recovery and Development Plan, or by different efforts being discussed in the Democratic Republic of Congo, on how to include victims and their situation in stabilization and development programs. However, these initiatives run the risk of being politically manipulated or limit reparations to material components only, without acknowledging responsibility or adopting measures for guaranteeing non repetition.
Photos: TOP: In Peru, a woman walks next to a sign explaining a collective reparations project in Peru. The project consisted in paving half of a block of a street in the urban center of the town of Acomayo, Huánuco, where the town's clinic is located CRISTIAN CORREA/ICTJ; In Tunisia, a memorial erected in the street pays tribute to Mohamed Bouazizi ICTJ; Women in Baranquilla, Colombia, prepare a meal. They are working to secure reparations for victims of the armed conflict. CAMILO ALDANA SANIN/ICTJ; Participants form a circle in a workshop on collective reparations in Peru ICTJ; Uganda's Honorable Justice Lawrence Gidudu addresses the audience at the release of the ICTJ report "Unredressed Legacy: Possible Policy Options and Approaches to Fulfilling Reparations in Uganda" ICTJ; Colombian paramilitary forces (AUC) during the demobilization ceremony in Casibare, Colombia JAN SOCHOR; A Congolese man sits in a social center on May 29, 2012 at the Mugunga III internally displaced people camp near the city of Goma in the Democratic Republic of the Congo. PHIL MOORE/AFP/GettyImages; Local children in Nepal listen to their teacher in a government run school, in Ruinibang, a Maoist village Western Terai district. JONATHAN ALPEYRIE/Getty.