The concept of reparations

Reparation for the victims or survivors of torture, which is their right under international and many national laws, is becoming more and more a realistic possibility. As a result, many legal academics and lawyers, sociologists, medical practitioners and psychologists are now discussing the concept of reparation, what it entails and why it is so important; however, only a few of these experts have actually sought the opinions and experiences of survivors themselves. For instance, how do they perceive reparation, and what are their expectations of achieving it; what do they need or want when they follow the route to redress?

“This preliminary survey identifies the theoretical and empirical studies on torture survivors’ 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 survivors’ 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.”

Reparation for human rights violations has, in the words of Theo van Boven, “the purpose of relieving the suffering of and affording justice to victims by removing or redressing to the extent possible the consequences of the wrongful acts…Reparation should respond to the needs and wishes of the victim” (1993, para. 137, emphasis added).  Although the legal right to reparation for human rights violations is now a firmly established principle in international law, little light has been shed on the nature of the needs and wishes of survivors. It is usually taken for granted that survivors “need” reparation as part of their recovery or rehabilitation. On a psychological level, it is often implicitly and sometimes explicitly assumed that receiving some form of reparation necessarily brings about “closure” for survivors.

The relevant literature, however, gives little attention to the experience and opinions of survivors themselves. Do they all desire reparation and compensation? How important is it for them? What is their experience of trying to claim this right? What are their expectations of the effect reparation will have on their lives? Are they satisfied with the outcome? Moreover, which of the many differences between survivors – age, gender, culture, nationality, socio-economic or political circumstances influence these perceptions?

A clear distinction must be drawn between the legal and moral right to reparation and the wants and needs of individual survivors. The legal framework exists and must be upheld, but there are different perceptions as to the nature and scope of the rights and how they might be exercised, it is with the latter area that this paper is concerned. It is hoped that this research will act as a first step towards a better understanding of what survivors want and expect from reparation. This in turn will help to make the services offered as effective as possible. The survey details what research has already been undertaken in this area and identifies gaps in that research, with a view to determining the needs for additional courses of action.

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Professor Theo van Boven

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