Form Of Reparation Research Articles

The Obligation to Provide Reparations by Armed Groups: A Norm under Customary International Law?

Reparations represent a key element to redress the suffering caused to victims of armed conflict. Taking into account the predominantly non-international nature of contemporary armed conflicts and the fact that armed groups represent half of the participants, it seems legitimate to question whether reparations should also be provided by armed groups. From the victims’ perspective, the suffering caused to them remains the same irrespective of whether the perpetrator is a state or a non-state actor. In this context, there appears to be an emerging practice supporting the obligation of armed groups to provide reparation, as acknowledged in some UN reports. In addition, there have been examples of armed groups committing to provide some forms of reparation to victims through peace agreements, unilateral declarations and codes of conduct. This article analyses the recent international practice and examines any potential duty by non-state armed groups that could have been recognised in the provision of reparations. More precisely, the article evaluates whether the developments in the practice of armed groups could be considered as contributing to customary international law and suggests how this practice could be weighted together with the practice of states. It also identifies challenges and limiting factors in the provision of reparations by armed groups.

COVID-19: The Shift From Clinical to Public Health Ethics.

COVID-19: The Shift From Clinical to Public Health Ethics.

Balancing Specificity of Reparation Measures and States’ Discretion to Enhance Implementation

AbstractA recurrent statement when implementation of international orders or recommendations in individual cases is considered is the belief that greater specificity of the measures helps compliance. Our research project examined a number of decisions adopted by some of the UN treaty bodies, and the regional human rights commissions and courts, in Africa, the Americas and Europe, and attempted to trace the extent to which the reparations ordered by the supranational bodies were implemented by the state authorities. This article focuses primarily on the reparations ordered by the Inter-American, African and UN systems and attempts to define specificity, emphasizing that it refers to a constant process of refining and clarifying the meaning of different forms of reparation. Specificity is then ‘unpacked’ in terms of the content of the reparation, deadlines imposed, who is responsible and who is a victim, and how the decision is reasoned. In so doing, the article maintains that specificity must also be considered vis-à-vis the degree of discretion that is given (or not) to states to act on orders or recommendations given by supranational bodies in individual cases. We conclude that a more nuanced approach to specificity versus ambiguity is needed, tailored to each reparation, each state and each case.

Conceptualising rehabilitation as reparation for torture survivors: a clinical perspective

ABSTRACT The right to rehabilitation as a form of reparation is well-established in international law although with respect to torture survivors, it has been insufficiently scoped, conceptually unclear and what it means in practice, has remained partial and ambiguous. This article provides a clinical perspective on the conceptualisation of the right to rehabilitation as a form of reparation for survivors of torture. It explores the nature of rehabilitation and its components in practice, highlighting the theoretical and ideological influences which shape diverse approaches to rehabilitation in practice. Drawing on recent developments in international law, specifically, the conceptualisation of rehabilitation in General Comment 3 on Article 14 of the Convention Against Torture is discussed and an integrative, conceptual model of rehabilitation, drawing on legal and clinical perspectives, is proposed.

Ingabire Victoire Umuhoza v. The Republic of Rwanda

In its landmark November 24, 2017 judgment in Ingabire Victoire Umuhoza v. The Republic of Rwanda, the African Court on Human and Peoples’ Rights (ACtHPR) or Court) held that certain aspects of the right to a fair trial (presumption of innocence and illegal searches) and the right to freedom of expression under the African Charter on Human and Peoples’ Rights (Banjul Charter) and the International Covenant on Civil and Political Rights (ICCPR) had been violated by the Republic of Rwanda (Respondent State). In its final orders, however, the Court rejected the applicant's prayer for immediate release and deferred its decision on other forms of reparation. The judgment has broad implications on how African states protect and respect the rights to a fair trial and freedom of expression. The case also offers some vital lessons on state backlash towards human rights litigation and African states’ compliance with decisions of international courts (ICs).

Rethinking Non-Pecuniary Remedies for Defamation: The Case for Court-Ordered Apologies

Legal scholars have been encouraged to examine alternative remedies for defamation in response to an increasing criticism of monetary damages. Various types of non-pecuniary relief (such as retraction, right of reply, publication of court decisions or declaratory judgement) have been made the subject of elaborate studies. The role of court-ordered apologies as a non-pecuniary defamation remedy has been scarcely discussed in academic literature. The work that has been done focuses either on the remedial role of apologies in East Asian jurisdictions or on apologies as a civil legal remedy aimed at emotional recovery for specific kinds of harm (such as personal injury, invasions of privacy or violations of equal opportunity legislation). These studies, which mostly go beyond the scope of defamation law, pay very little attention to the Western legal tradition. The Anglo-American and continental-European legal culture are considered non-apologetic traditions, which are clearly unfamiliar with the remedy of imposing apologies. Contrary to the conventional wisdom, this article shows that court-ordered apologies are available as a defamation remedy in a non-negligible part of the Western legal tradition. This is demonstrated through a profound comparative legal analysis of continental legal systems (Western, Central as well as Eastern European jurisdictions), a mixed legal system (South-Africa) and common law systems. Simultaneously, this article allows us to gain a better understanding of why this remedy is still applied in some jurisdictions and why it has disappeared in others. The article proceeds on the premise that a case can be made for court-ordered apologies as a defamation remedy in the Western legal tradition, and accordingly, it is argued that they are worth considering in jurisdictions which do not make use (anymore) of this legal tool. First, in operating a symbolic reversal of the original defamatory assertion, court-ordered apologies are more likely to produce a shaming effect than other remedies. Second, it is possible to attribute an educative function to court-ordered apologies, allowing courts to educate members of the community about what constitutes unlawful and injurious statements. When examining the implementation of court-ordered apologies as defamation remedy, a civil-common law divide comes to the fore. Whereas apologies can be introduced in continental legal systems as a form of reparation, it is harder to import them into Anglo-American legal systems. The same goes for the reconciliation of this type of relief with freedom of expression, which is simpler to attain under the balancing test of the European Court of Human Right than in some common law systems.

Reflections on the International Adjudication of Cases of Grave Violations of Rights of the Human Person

The coexistence of contemporary international tribunals has fostered the access to justice for the determination of international responsibility. There are approximations and convergences between the International Law of Human Rights, International Humanitarian Law, the International Law of Refugees, and contemporary International Criminal Law. The central place is of the human person. In addressing grave violations of the rights of the human person, international tribunals have a humanist common mission of rendering justice as a form of reparation. Jusnaturalism prevails over legal positivism, conscience stands above the “will”.

Gendered Subjects of Transitional Justice

Transitional societies must contend with a range of complex challenges as they seek to come to terms with and move beyond an immediate past saturated with mass murder, rape, torture, exploitation, disappearance, displacement, starvation, and all other manner of human suffering. Questions of justice figure prominently in these transitional moments, and they do so in a dual fashion that is at once backward and forward looking. Successor governments must think creatively about building institutions that bring justice to the past, while at the same time demonstrate a commitment that justice will form a bedrock of governance in the present and future. This is no easy task, and shortcuts, both in dealing with the past and in building a just future, often appear irresistible. In Martha Minow's words, justice at this juncture amounts to replacing violence with words and terror with fairness, (1) and steering a path between too much memory and too much forgetting. (2) The template of mechanisms available to undertake transitional justice are familiar to those who work in this field: prosecutions (domestic and international); truth and reconciliation commissions; lustration (the shaming and banning of perpetrators from public office); public access to police, military and other governmental records; public apology; public memorials; reburial of victims; compensation or reparation to victims and/or their families (in the form of money, land, or other resources); literary and historical writing; and blanket or individualized amnesty. In most cases, justice demands the deployment of a number of these tools, given that no one of them can adequately address and repair the injuries of the past nor chart a fully just future. Transitional justice will always be both incomplete and messy. Justice is, of course, a very complex ethical, legal, institutional, and emotional problem, and its aspirations are rendered all the more difficult in transitional societies that are struggling with unstable governance, security, and economic institutions. To better illuminate these complexities, particularly as they relate to gender, I will borrow a framing device from political scientist Nancy Fraser. In Justice Interruptus, Fraser discusses one of the key dilemmas of justice projects: whether they should be fundamentally committed to redistribution or recognition. (3) Justice as redistribution is a familiar concept entailing the reordering of material and symbolic resources based upon a particular account of culpability, desert, accountability, injury, and fairness. These transitional justice projects could be primarily committed to redistributing money or land (in the form of reparations), but they could also redistribute shame (from the injured to the injurer) or power--resources that might be best understood as symbolic and cultural. By contrast, justice projects that emphasize recognition seek the establishment of official bodies, be they courts, tribunals, officially appointed commissions, or boards of inquest, whose task it is to find facts, and, more importantly, recognize, acknowledge, or call up the identities of the parties and acts that are brought to their official attention. The facts to be recognized may be culpability, harm, injury, or causation. Individual identities to be recognized would be that of criminal, victim, conspirator, or rights-holder, while the identity of particular criminal practices may be recognized as well, such as genocidal, gender, or ethnic-based crimes. Of course, a preference for redistribution over recognition, or vice versa, does not tell you which of the tools of transitional justice to prefer. Courts can both recognize and redistribute, as can truth and reconciliation commissions that possess the power to order reparations. However, I think it fair to say that while transitional justice mechanisms can undertake either or both justice as redistribution and justice as recognition, at the end of the day most of them end up accomplishing more recognition than redistribution. …

The Other Within: White Shame, Native-American Genocide

In this article, the author asks about the genocidal history of the United States, and the forms of reparation and recognition that can be found in white racial shame and white racial guilt. Examining the history of white supremacy in the United States, the author queries the differential practices of twin racial regimes: African-American slavery and the extermination of Indigenous peoples. Because of these differential practices of persecution, the “vanished Indian” will enter white psychoanalysis through the evocation of “creative racial shame”; whereas African-American slavery has entered that psychoanalysis through depressive white guilt. Much as psychoanalysis has distinguished pathological guilt from the depressive guilt that leads to reparation and remorse, the author distinguishes pathological shame from a creative form of shame that allows us to see the Other whom whiteness has vanished.

The Systemic Violation of Section 26(1): An Appeal for Structural Relief by the Judiciary

In 2014, a year supposedly marked to celebrate twenty years of democracy and the transformation of our housing regime from one being grossly discriminatory to a welfare-orientated legal system that functions under the auspices of the rights and values entrenched in the Constitution the poorest households in South Africa remain subject to not only intolerable housing conditions, but also unlawful state evictions. The housing jurisprudence has developed certain indicators of the state’s constitutional obligations and these indicators constitute the courts’ conception of its expectations of the state in complex housing disputes that generally concern homelessness/landlessness. However, recent state actions taken in contravention of section 26 indicate the systemic violation of the right to the extent that it is deprived of all meaning. With the required cognisance of the courts’ inherent competencies, concerns for separation of powers boundaries and an inclination to maintain a high level of deference in polycentric matters with economic and social consequences for the community, the courts are obliged to hold government accountable and vindicate the violation of fundamental rights. A form of reparation is therefore required that is able to address these violations in a systemic manner, without usurping the functions of the executive. Structural relief is apt in such instances, provided that it is structured in a specific manner to address immediate and long-term housing needs in a way consistent with other constitutional provisions and the underlying values of the Constitution. A once-off form of relief is inappropriate to counter the systemic violation of the right of access to adequate housing.On the other hand, a structural interdict is different to the extent that it can consist of different remedial phases over which the court retains jurisdiction to ensure that the state complies with its section 26(2) obligations. Throughout this process of supervision the court should encourage a dialogue between the different stakeholders and assist with predeterminations of the kinds of governmental actions that would be unreasonable, procedurally unfair and generally in contravention of the Constitution.

Realizing the Right to Reparations for Girl Soldiers: A Child-Sensitive and Gendered Approach

D. Allocation and Form A fourth major challenge in providing reparations is decide on allocation and form. As mentioned in the historical overview in Part I, reparations can take many forms: anything from money, scholarships, and monuments, the ordering of investigations and declaratory judgments. (159) In a victim-centric approach, victims would be consulted as the form of reparations in addition the method of allocation. The results of case studies and research can, nevertheless, help inform victims of the advantages and disadvantages of any given option. In addition, victims' desires must also be weighed against the interest of other victims or victim groups (including victims of victims, as addressed above). Where monetary resources are few, creative attempts achieve justice should also be considered. It may be that a day of remembrance or renaming a street can both provide victims with a sense of restored dignity and require minimal resources. Victims' desires should not, however, be assumed. In Argentina, one organization representing victims rejected the idea of reparations for the loss of family members, declaring in particular that economic reparations were a form of prostitution. (160) Similarly, land restitution may only be a good option where victims are able or willing resettle. In Bosnia and Herzegovina, the Commission for Real Property Claims of Displaced Persons and Refugees was established in 1995 as a partial response the regional conflict. (161) Politicians invested in the success of the Dayton Peace Agreement decided upon property restitution in lieu of compensation in order help undo the ethnic cleansing and recreate a multi-ethnic society. (162) Victims' voices were largely silent in these discussions, however, and in practice there was a strong bias against those who did not Local authorities are reported have denied restitution to those they deemed as having no intention return. (163) As these examples illustrate, victim consultation is important rendering effective the right reparation. In the girl soldier context there are a host of specific dilemmas involved in deciding upon the form and allocation of reparations for these victims. As illustrated, cash payouts can be confusing for former combatants, if interpreted as a reward for harming others. If the former combatants are still minors, parental guardians may legally maintain control of their assets and there is no guarantee that these will be used for the child's benefit. (164) Payments can also negatively impact family reintegration if child soldiers resist turning over the money parents, in violation of cultural expectations. (165) Laws in some countries may also prevent adult women from controlling their assets. (166) Even worse, payments for demobilization can incentivize children, sometimes under family pressure, join armed groups in the first place. (167) While rehabilitation programs are essential, (168) they may not go far enough explicitly recognize the individual rights violation. (169) This is particularly so where these same benefits are given former adult combatants. (170) Symbolic reparations involving individualized public recognition may also be problematic where victims of sexual violence or otherwise stigmatized former combatants may wish hide their status. Finally, as a triple-marginalized community--as women, children, and those formerly associated with armed forces--these girl soldier victims may find it nearly impossible have input in the process. Deciding upon the appropriate allocation method and form(s)--including the decision-making process--therefore, will be paramount effectively realizing girl soldiers' right reparations. E. Transformative Justice: A Child-Sensitive and Gendered Approach Finally, if we are take a child-sensitive and gendered approach, and conceive of reparations as not only a legal right, but also, as a tool for transformation, we face the additional challenge of how provide reparations in a manner leading a better overall situation for both these girls and future society as a whole. …

Evolution of Japanese ODA 1945-2015: An Analysis

When Japan emerged as a global economic power, it increased its role in shaping the development of the international community through bilateral and multilateral economic cooperation. The history of Japanese ODA began after gaining its independence from the United States in 1952. Japan began building its ODA program beginning with the payment for war reparations as well as economic and technical cooperation to Asian countries it formally colonised. Until the end of 2015, Japan was still actively adapting its ODA to support the process of socioeconomic development of recipient nations. This article examines the evolution of Japanese ODA from 1945 to 2015. This research is significant in assessing the disbursement trend, the challenges and direction of Japanese ODA in the 21st century. There are five time periods of analysis for the history and evolution of Japanese ODA, firstly being that of Japan’s economic restructuring after the war from 1945 to 1953. Throughout this time period, Japan received aid from the United States and the World Bank. The second period spans 22 years and is known as the quantitative development and expansion of ODA from 1954 to 1976. This period was also known as the war reparation period. Japan provided foreign assistance in the form of reparation as well as economic and technical assistance to former colonies. The third period was 14 years of systemic expansion from 1977 to 1991. Japan adapted 4 goals during this period in order to increase the amount of aid to recipient countries. The fourth period was the development of ODA philosophy and policy from 1992 to 2002. The global ODA charter was introduced in this period, aimed to explain the Japanese ODA philosophy and promote its aid activities in line with its foreign policy. Japan’s role could clearly be established during this period. The last period, challenges in the new era of ODA, began in 2003 until the present time. This was when the ODA charter was re-evaluated for the first time after 11 years on August 23, 2003, in order to shape a more comprehensive global cooperation policy. The re-evaluation of the charter was relevant as the global challenges have increased Japan’s role and improved the relation between Japan and its aid recipients.

Education as Rehabilitation for Human Rights Violations

Reparations for human rights violations in the form of rehabilitation can include social services such as education. This can be a particularly appropriate form of reparation for victims who have experienced abuses that result in missed education as a lost opportunity. Reparations can be rehabilitative by directly responding to harms suffered by victims and their ensuing needs, thereby helping to reintegrate those victims into society and restoring to them a functional life. Education can be provided through an administrative program or policy as individual reparations, such as scholarships to victims, as collective reparations, such as the rebuilding of schools in communities hard hit by abuses, and as symbolic reparations, such as naming schools. Court decisions awarding education as a form of reparation have also contributed significantly to our understanding of education as rehabilitation. This article examines the contributions that education as rehabilitation can make to redress as well as the implementation challenges faced by initiatives that have attempted to do so.

Reflections on Rehabilitation as a Form of Reparation in Chile after Pinochet’s Dictatorship

This article considers the Programme for Reparation and Integral Health Assistance for Victims of Human Rights Violations (prais) in Chile. It includes a summary of the reparations programmes implemented in Chile from 1990 to 2004, to redress the human rights violations suffered by victims of Pinochet’s dictatorship (1973–1990). The Health Programme was created in 1991 and reinforced by law in 2004. It has been the principal reparation measure for victims of human rights violations adopted in Chile, including third-generation relatives. This article puts them in context and assesses achievements and challenges of the reparations programme.

Rehabilitation and the Right to Health in Times of Transition

The harm to health of victims of civil and political rights abuses has been a focus of some reparations programmes. Rehabilitation has been the primary form of reparation for harm to health. Is this current approach an appropriate response by reparations programmes to violations of the right to health during conflict or repression? Given the nature of right to health violations in conflict or repression, we suggest that reparations programmes should broaden their focus to also address not only the health consequences of civil and political rights violations, but also the destruction or neglect of the health system, and policies which harm health. We consider whether rehabilitation is the only suitable form of reparation for such abuses. We also consider the relationship between the fields of transitional justice and public health in periods of transition, including whether some conflict-related right to health violations should be addressed in the health sector rather than reparations programmes and, if so, how this can be done successfully.

Surviving in the margins of a genocide case in the making: recognizing the economy of testimony at stake in research on political violence

ABSTRACTIn this article, we aim to draw attention to the hopes, frustrations and disillusions that so-called ‘transitional justice’ projects produce in drastically poor, war-torn, historically marginalized but politicized Indigenous communities. Drawing on extensive ethnographic research we conducted separately between 1982 and 2010 in Guatemala and Mexico, we describe the ways in which the world came to know about Finca San Francisco’s massacre, committed by the Guatemalan army on 17 July 1982, as part of its scorched earth policy. We then look at the various forms of reparations its survivors have been the subject of. In so doing, we focus more specifically on how the Center for Human Rights Legal Action (CALDH), the non-governmental human rights organization that was behind the Ríos Montt genocide case, mobilized Finca San Francisco’s massacre survivors to become participants in the trial. After examining how the survivors of Finca San Francisco responded to CALDH’s mobilization efforts, we reflect on the kind of ‘gift’ these survivors expected in return for their stories of annihilation and destruction. Our goal is to bring to light the ‘economy of testimony’ that human rights activists, journalists or social scientists become entangled in once they ask genocide survivors to testify about the brutal deaths of their loved ones.

Reparations for ‘Guilty Victims’: Navigating Complex Identities of Victim–Perpetrators in Reparation Mechanisms

Reparations are often declared victim-centred, but in transitional societies defining who is a victim and eligible for reparations can be politically charged and controversial. The messy reality of conflict means that perpetrators and victims do not always fall into two separate categories. In certain circumstances, perpetrators can be victimized and victims can be responsible for victimizing others – this article explores these complex victims. Looking in particular at the 1993 Shankill bombing in Northern Ireland, as well as at Colombia and Peru, such victims are often seen as ‘guilty’ or ‘bad’ victims undeserving of reparations. I argue that complex victims need to be included in reparation mechanisms to ensure accountability and to prevent their exclusion becoming a source of victimization and future violence. I consider the alternative avenues of human rights courts, development aid, services and community reparations to navigate complex identities of victim–perpetrators. I conclude that complex identities can be accommodated in transitional societies’ reparation programmes through nuanced rules of eligibility and forms of reparations.

THE ITALIAN IMPLEMENTATION OF THE COUNCIL OF EUROPE CONVENTION ON VIOLENCE AGAINST WOMEN AND VICTIMS’ RIGHTS TO REPARATIONS

On 27 June 2013 Italy ratified the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention). This ratification was the result of the recent focus of socio-political forces on the serious and widespread phenomenon of violence against women in Italy. This article seeks to analyze the issue of how to ensure the effective implementation of this comprehensive and complex source of international obligations in the domestic legal order. In this analysis, specific attention will be devoted to one particularly significant aspect of non-compliance with the Istanbul Convention, i.e. the rights of female victims of violence to receive State compensation as a form of reparation, enshrined in its Article 30. At the same time, the analysis of Article 30 will raise more general points with regard to how to remedy instances of failed implementation of human rights treaties, and most importantly on the possible role of national courts in ensuring respect of such treaties when the latter are not assisted by a supranational judicial authority in charge of their interpretation and implementation.

The Restorative Role of Apology in Resolving Medical Disputes: Lessons From Chinese Legal Culture.

This article is the first exploration of the Chinese notion of apology from a comparative legal perspective. By reviewing the significance of apology in the context of Chinese culture, the article presents a three-dimensional structure of apology that, in contrast to the understanding the research community now has, defines acknowledgement of fault, admission of responsibility, and offer of reparation as three essential elements of an apology. It is the combination of these three elements that enables apology to serve as a form of reparation. The article further places the three-dimensional apology in the context of the Chinese concept of "the relations of humanity," arguing that an apology accompanying admission of fault and responsibility may help to restore the harmony of relations and, by so doing, resolve medical disputes positively.

Necessity of Technical and Vocational Education for Conflict Victims

This paper explores the impact of ten years armed conflict on Nepalese People, analyzing how these people are coping the situation in post conflict. Some international practices for conflict victim’s related literature are also presented here. It then considers the forms of reparation and how human rights principles, particularly those regarding the best interests and evolving capacities of the people can help guide program design through TVET program. Ultimately, this analysis shows that people-oriented reparations should be tailored to people’s particular vulnerabilities, needs, and circumstances.DOI: http://dx.doi.org/10.3126/jtd.v1i0.13087 Journal of Training and Development Vol.1 2015: 27-32