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Defining the Goals of Reparations
The quest for protecting individuals from mass atrocities is as old as the UN Charter and the Universal Declaration of Human Rights. The larger part of the Principles and Guidelines, with strong domestic law implications, sets out the status and the rights of victims, and corresponds to the title of the document as it refers to the right of victims to a remedy and reparation.
"This preliminary survey identifies the theoretical and empirical studies on torture survivorsâ€™ perceptions of the processes of obtaining reparation. The survey goes further, however, by looking at the difficulties of obtaining reparation, the meanings of specific forms of reparation expressed by survivors, and the different levels of expectations held by disparate individuals and socio-political groups. Too many questions about torture survivorsâ€™ perceptions remain unanswered, and this survey is a first step towards understanding their attitudes and motivations. Without their contributions, we are in danger of encouraging people whose lives have been shattered to exercise rights about which they are unclear via legal processes in which they are not involved and probably do not understand. Worse still, these actions could produce outcomes which neither satisfy them nor match their expectations."
At this juncture, the state responsibility to respect and ensure the human rights of their citizens is a powerful political tool with huge potential. The responsibility of States for wrongful acts includes the responsibility of cessation and non-repetition, reparation, and irrelevance of internal law. The responsibility of States for wrongful acts includes the responsibility of cessation and non-repetition, reparation, and irrelevance of internal law. It also recalls the responsibilities of States to end impunity and to prosecute those responsible.
Reparation shall render justice by removing or redressing the consequences of the wrongful acts and by preventing and deterring violations. Reparations shall be proportionate to the gravity of the violations and the resulting damage and shall include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.
In the context of historical oppression or mass violations, reparations are aimed at restoring relationships on the basis of the equal dignity of all involved. They are, in some way, oriented toward the future. It is impossible, however, to restore or establish relationships based on mutual respect without acknowledging past abuses and their consequences in the present.
In addition, setting the stage for more equal relationships can go someway toward providing guarantees of non-repetition. Reparations should provide the conditions needed for future relationships based on the mutual recognition of dignity, as well as conditions that guarantee not only that the same kind of oppression will not happen again but also that the mindsets and ideology that allowed it to occur are eradicated.
A number of attempts have been made to produce guidelines or principles on the right to reparation; probably the most well known and comprehensive are those produced by Professor Theo van Boven; said Ms.Carla Ferstman, director of REDRESS
The van Boven principles
In 1989, Professor van Boven was entrusted by the United Nations with a study of the right to restitution, compensation, and rehabilitation for victims of gross violations of human rights and fundamental freedoms. This ultimately resulted in Draft Basic Principles and Guidelines (1997), in which he concluded that the only appropriate response to such victims is one of reparation.
According to the basic principles and guidelines, the victimâ€™s right to a remedy encompasses (a) access to justice; (b) reparation for the harm suffered; and (c) access to factual information concerning the violations (Bassiouni, 1999). Reparation, it is stated, should be adequate, effective, prompt, proportional to the gravity of the violation and the harm suffered, and should include various forms. Professor van Bovenâ€™s study outlines four main forms of reparation
Restitution - designed to re-establish the situation which would have existed had the wrongful act not occurred. This may include restoration of liberty, family life, citizenship, return to oneâ€™s place of residence, and restoration of employment or property.
Compensation - should be provided for any economically assessable damage which results from the act (physical or mental harm, pain, suffering, lost opportunities, loss of earnings, medical and other expenses of rehabilitation, legal fees, etc.).
Rehabilitation - to include medical, psychological and other care and services, as well as measures to restore dignity and reputation.
Satisfaction and guarantees of non-repetition- including verification of facts and full public disclosure of the truth; a declaratory judgment (as to the illegality of the act); apology; judicial or administrative sanctions against the perpetrator(s); commemorations; prevention of recurrence (through legal and administrative measures including prosecution).
The UN Principles on the Right to a Remedy and Reparation specifically clarify the scope of obligations in human rights terms. States are required to respect, ensure respect for, and implement international human rights law and international humanitarian law. The means to meet these obligations are also spelled out. They include
a) the duty to prevent violations; b) the duty to investigate violations effectively, promptly, thoroughly and impartially and, where appropriate, take action against those allegedly responsible; c) the duty to provide the victims with equal and effective access to justice, irrespective of who may ultimately be the bearer of responsibility for the violation; and d) the duty to provide effective remedies to victims, including reparation.
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Prospects:- International human rights treaties and instruments provide that victims of international crimes have the right to seek and obtain effective remedies for the violation of their rights. In honouring the victimsâ€™ right to benefit from remedies and reparation, the international community keeps faith with the plight of victims, survivors and future human generations and reaffirms international law in the field...International Courts and Tribunals
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