September 2003
The Importance of Compensation
| In our name, unspeakable crimes have been committed and demand compensation and restitution, both moral and material, for the persons and properties of the Jews who have been so seriously harmed. --Konrad Adenauer, first Chancellor of the Federal Republic of Germany, 1951. in When Sorry Isn't Enough, ed. Roger Brooks, p. 61. |
There is a growing awareness that addressing past injustice is a crucial part of the process of healing and reconciliation. In order to move towards a peaceful future, governments must acknowledge and respond to the wrongs and injuries of the past, especially human rights violations. Doing so takes various forms. One way is through compensation programs and reparations for the victims of injustice. Many note that issues of compensation and rehabilitation of victims should be incorporated into plans for post-conflict reconstruction and economic revitalization.[1]
To commit human injustice is to violate or suppress people's rights or fundamental freedoms as recognized by international law. Unfortunately, many instances of injustice can be tied to policies either condoned or consciously chosen by active governments. These state-sponsored human rights violations include genocide, slavery, torture, arbitrary detention, rape, and systematic discrimination. Such violations cause serious damage to the physical and moral integrity of individuals and to the very existence of groups, communities, and peoples.[2] Although these harms are often irreparable, international and national courts have required states to pay victims compensation for both material and psychological injury sustained as a direct result of their actions or policies. This serves both to acknowledge the violation and to sanction the state in question. A society that once tolerated human rights abuses must come to terms with the past, accept responsibility, and try to make amends.[3]
Customary international law provides the legal foundation for victims' right to compensation.[4] Various international treaties have recognized that victims of gross human rights violations and war crimes have a right to restitution, compensation, and rehabilitation. And the obligation to provide compensation for victims of injustice has become part of international humanitarian law.[5] Article Eight of the Universal Declaration of Human Rights, for example, states that everyone has the right to an effective remedy. And Article 10 of the American Convention on Human Rights refers to a "right to be compensated in accordance with the law."[6] Such laws stress the importance of publicly recognizing the damages caused by injustice and of addressing the needs of victims.
Compensation serves a variety of important functions. First, it helps victims to manage the material aspect of their loss.[7] Individual financial grants help to bring immediate economic relief to the victims and allow them to fulfill basic survival needs. In many cases, monetary reparations in the form of monthly payments are essential to ensure victims' survival. At the collective level, funds for community rehabilitation programs ensure that survivors of gross human rights violations receive proper treatment.[8] Monetary compensation programs may also deter the state from future abuses by imposing a financial cost on such misdeeds.[9]
However, many note that such reparations are not primarily about money, but rather about making crucial repairs to individuals' psyches, and to social and political institutions.[10] Compensation programs serve to publicly acknowledge wrongdoing, restore survivors' dignity, and raise public awareness about the harms victims have suffered.[11] For this reason, reparations for former victims or their family members are often a psychologically necessary component of the healing process. In addition, both monetary and symbolic compensation plays an important role in the process of bereavement. Monuments, plaques, and other markers serve to publicly remember the events of the past and help carry lessons from the past into the future.[12] This can help former victims to come to terms with the traumatic events that have occurred.
Indeed, compensation programs are a crucial part of restorative justice and serve as focal points in the healing process. They can help victims move beyond the desire for revenge and make it possible to repair relationships that have been damaged by acts of injustice. Restitution paid to the victim can serve as a symbolic apology and signify a move to make amends and take responsibility.[13] Reparations also serve to expose victims' grievances and redirect blame towards those who are truly responsible. This can contribute to the reintegration of victims into society and reduce the likelihood of renewed violent confrontation.[14]
Lastly, compensation programs serve to promote and protect human rights. They aim to publicly recognize the harms victims have suffered, correct these abuses, and prevent the reoccurrence of such acts.[15]
Methods of Compensation, Reparation, and Restitution
| "Following WWII, the German government set up various programs that aimed to compensate individuals who had suffered persecution or injury at the hands of the Nazis. For example, the Hardship Fund provided Jewish victims of Nazi persecution with a one-time payment while the Article 2 Fund provided a lifetime pension." -- from "German Compensation for National Socialist Crimes," in When Sorry Isn't Enough, ed. Roger Brooks, p. 63. |
Customary international law suggests that the victims of human rights violations must receive a remedy for the injuries they have suffered. But what counts as an appropriate remedy? One way that governments can respond to human injustice claims is to issue sincere apologies. However, apologies may not do enough to satisfy victims' demands for justice and allay their fears that the same atrocities might be repeated.[16]
In general, compensation programs endeavor to "extinguish, as far as possible, all the consequences of the illegal act and reestablish the situation which in all probability would have existed if that act had not been committed."[17] In many cases, this involves financial compensation or payouts to assist survivors. Victims should receive compensation for all damages that result from the wrongful act, including any profits that would have been possible had those unjust acts not occurred.[18] This includes lost educational opportunities, wages, and business profits. It also encompasses physical, psychological, and material damages, as well as medical and legal costs associated with the human rights violations.[19] Financial compensation and assistance allows victims to satisfy their immediate needs and to purchase food, medical care, housing, and education. This improves the quality of victims' lives and helps them to return to the state they would have been in had the injustice never occurred.[20]
Measures should also be taken to ensure that relatives of missing persons receive adequate financial assistance to carry out investigations into the whereabouts of missing family members.[21] Family members of those killed should receive pensions for lost wages. And victims of torture and other gross human rights abuses should be compensated and receive the financial means for full rehabilitation.
However, compensation need not be strictly monetary. It should also include necessary psychological and social assistance and support. The United Nations has recommended that governments make available public and social support services for victims of crime and abuse of power and foster culturally appropriate programs for victim assistance and compensation.[22] This includes the establishment of local treatment centers for the survivors of human rights violations, community-based survivor support groups, and rehabilitation systems for perpetrators and their families.[23]
| "Sometimes new legal entities are established to deal with the task of compensation. In the former Yugoslavia, for example, the peace accords established a commission to restore land to those displaced by war, resolve property disputes, and provide compensation to dislocated victims." -- Neil J. Kritz, in The Rule of Law in the Post-Conflict Phase, p. 599 |
Compensation can also be provided through the restitution of property that was wrongfully seized and the reallocation of economic resources.[24] For example, in cases where human rights abuses have caused physical or emotional injury, the provision of medical and psychological treatment will be appropriate. And in cases where victims have lost their employment or property, replacement of these losses might be the best response.[25] Programs to return property or employment that was wrongfully removed aim to re-establish the situation that would have existed if the wrongful act had not taken place. For example, the establishment of land or housing commissions to return property or pay compensation to former owners is crucial.[26] Other non-monetary reparations include affirmative action, the construction of new medical facilities and educational services, and the creation of social security and housing programs.[27] This includes the establishment of community colleges, new schools, and housing projects.
Compensation can also be non-material. Symbolic reparations include erecting headstones, building memorials, renaming public facilities, and establishing days of remembrance.[28] Legal interventions to expunge criminal records, exhume bodies, issue declarations of death, and conduct reburials are other common methods of reparation.
In addition, states must carry out various initiatives to ensure that justice is served and guarantee that abuses will not be repeated. This includes both formal apologies and the prosecution and punishment of those responsible for the human rights violations.[29] Truth commissions and war crime tribunals to investigate serious human rights violations and publicly expose the truth of what happened are crucial. An accurate record of the abuses should be included in educational materials and the state should institute commemorations to pay tribute to the victims.[30] In many cases, those individuals directly responsible for war crimes and human rights abuses should be held criminally accountable. Governments should publicly claim responsibility for the violations that they perpetrated or condoned and work to disclose the truth about what has occurred.[31] Finally, an international or domestic court should publicly acknowledge the wrongdoing and issue a declaratory judgment that the acts committed were illegal. Many believe that public condemnation and airing of crimes is the best way for societies to put the past behind them and move on to the future.[32]
This right to compensation should not be restricted to individuals, but rather be extended to groups and peoples, including indigenous populations. In cases where whole communities have been victimized, there should be emphasis on symbolic and communal forms of reparation.[33] This might include rituals and ceremonies to acknowledge their suffering. In addition, these groups should be entitled to file claims and receive reparations for damages.[34] Minority groups should receive funds to carry out cultural activities and sponsor educational programs.[35] These types of collective compensation are intended to rehabilitate and revitalize the community as a whole.
Many note, however, that in order to truly rehabilitate the community, reparations must address structural violence as well as physical and psychological violence.[36] Broader social structures may have helped to create an environment highly conducive to human rights violations. Compensation for extensive structural oppression must therefore involve various social structural changes and efforts to advance socio-economic development. In order to ensure that human rights violations will not reoccur, states must work to reduce poverty and provide better access to health care, education, and jobs.[37] They must also provide human rights training to military forces and law enforcement officials, protect human rights workers, and strengthen the judiciary.
Moving Beyond Financial Compensation
While monetary compensation is indeed integral to addressing injustice and building peace, many have noted that such programs are often limited.
Because compensation programs are often considered a domestic issue rather than an international one, it may be difficult to implement such programs. Regimes that have tolerated human rights abuses may be unwilling to recognize the injustices of the past.[38] In fact, individuals responsible for past violations may retain their positions and oppose such programs. For example, they may suppress evidence or otherwise prevent claimants from seeking redress.[39] And if the victims are members of minority groups or hold unpopular political beliefs, there may be little public support for such programs.
In addition, the issues of redress for past abuses may seem too large to address. Varying capabilities and resources often shape whether a state is prepared to grant financial compensation. Domestic governments may simply be preoccupied with other political, economic, and social problems. Many of the countries where human rights abuses occur are developing countries burdened with high levels of poverty and a variety of social structural problems.[40] They may regard an expensive compensation program as far less important than the revitalization of the economy. And because these states have limited resources to compensate victims, these resources are often spent unequally.[41] Not all victims receive just compensation.
Another problem with financial compensation is that the sums of money granted will seldom equal the actual amount of money lost over the years when a family member is killed. Moreover, because many survivors suffer from impoverishment, receiving any money will help them to meet their immediate needs. As a result they are often compelled to prioritize their immediate need for short-term payment over the prospect of any long-term or symbolic reparations. While many survivors will initially be satisfied with monetary compensation, they may grow increasingly dissatisfied as time passes.[42] If victims do not feel that justice has been served, they will find it difficult to put the past behind them.
If former victims believe that the government does not genuinely represent their interests, they are likely to be suspicious of government-sponsored compensatory programs. Some may fear that the process of claiming compensation will be a degrading experience that forces them to relive painful memories. Others may hesitate to accept financial grants because they suspect that the government is trying to buy its way out of guilt by paying "blood money."[43] Victims may feel that if they accept reparations, they will be expected to forget about the past. For this reason, mothers of the disappeared group in Argentina, Madres de la Plaza de Mayo, refused compensation in absence of public recognition that their loved ones had been political opponents and not criminals.[44]
| "Passively accepting reparations can be experienced by the survivor as a disrespectful act that betrays the loss they have endured or the memory of those killed. It is only the ongoing combination of truth, justice, and survivor-support that may one day be sufficient to make some survivors feel at ease with accepting reparations as a symbolic replacement for what has been lost." -- Brandon Hamber, in Repairing the Irreparable, pp. 12-13 |
Indeed, financial assistance is inadequate to address the psychological and social justice needs of the individuals involved. In addition to suffering physical injury, victims of human rights violations typically suffer psychological injury and emotional distress. Compensation programs that simply pay out financial grants are not sufficient to help individuals overcome this psychological trauma. This is because the amount of distress, injustice, and anger that survivors typically struggle with is immeasurable. It is impossible to compensate for years of sexual abuse or for the loss of a child. Substantial material assistance cannot bring back the dead or fully ameliorate all of the pain that victims have suffered.[45]
To fully address the needs of survivors, states must go beyond symbolic acknowledgement and monetary compensation and combine these reparations with the ongoing needs of truth and justice. Victims often feel that the only thing that will enable them to put the past behind them is the disclosure of truth. Without such disclosure, survivors may view compensation programs as a governmental strategy to leave the secrets of the past hidden.[46] And investigations into past crimes are important if victims are to truly come to terms with the past. For example, state-sponsored truth commissions can conduct hearings for victims and perpetrators, and provide detailed reports about past events.[47] Similarly, non-governmental organizations (NGOs) can sponsor projects to document past atrocities. Where appropriate, criminal prosecutions of perpetrators may also contribute to the psychological healing and sense of closure of their victims.[48] Such procedures break the silence about past human rights abuses, expose past atrocities from victims' perspectives, and identify victims' needs for rehabilitation.[49] This aids the healing process and restores their dignity and reputation.
In addition, ongoing space must be provided for survivors to deal with the psychological and emotional impact of the losses they have suffered. Counseling, story-telling, public exhibitions, theatre, and the media are all important outlets for the feelings and complaints of former victims.[50] Likewise, community-based self-help groups and advice centers help family members of victims to deal with their loss.
Thus, to truly make amends for past violations, reparation and truth recovery must be linked. Any compensation programs that do not also encompass such efforts to expose the truth and carry out restorative justice will be insufficient.
Implementing a Fair Compensation Program
There is consensus in international law that former victims of human rights violations are entitled to compensation. The United Nations has set out various norms for victim compensation and assistance:
- Victims should be informed of their rights in seeking redress.
- Offenders or third parties should make fair restitution to victims or their families. This includes "the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of victimization, the provision of services, and the restoration of rights."[51]
- When compensation is not fully available from the direct offender, states should endeavor to provide financial compensation.
- Victims should receive the necessary material, medical, psychological, and social assistance and support.[52]
However, more must be said about how to implement a fair compensation program. Established domestic legal systems are frequently inadequate for addressing human rights violations. First, systems of tort or criminal law often have a relatively short statute of limitations that is inappropriate in cases of human rights violations. Second, as previously noted, governments under which such violations occur often face various other economic and social problems. Because compensation programs are likely to pose a financial burden, a government faced with severe economic problems may not regard compensation programs as a high priority. Third, there may be little public support for compensating former victims.[53]
Therefore, neutral and internationally applicable standards for compensation need to be created. International organizations should draft guidelines for the redress of human rights abuses.[54] These guidelines would stress the importance of compensation, help to convince governments to prioritize such programs, and make it easier for states to implement them. Even in cases where compensation programs were politically unpopular, the existence of these guidelines could serve to justify them.[55]
These guidelines should establish the circumstances under which compensation should be paid. This would include who is entitled to compensation, what sorts of loss or damage warrant compensation, who is responsible for compensation, and when a person can seek compensation.[56]
Those who can legitimately seek redress include those who have been directly victimized as well as the family members of those who are deceased.[57] Reparations can be paid for loss of income, loss of affection and companionship, and other damages associated with psychological trauma and emotional distress.
Damages should be paid for what was actually lost. This includes compensation for injuries, medical expenses, and loss of property and wages. However, many note that more than mere restitution is required to provide compensation for such gross human rights abuses. The compensation guidelines should therefore recognize the right of former victims to seek exemplary damages in addition to actual damages.[58]
Ultimate responsibility for ensuring the victims receive compensation should reside with the state.[59] Former victims often do not know the identities of those who perpetrated abuses against them. And even if they do know their identities, they may be hesitant to name those who have harmed them for fear of retribution. Also, because the state has obligations under international law to uphold human rights, it has a duty to afford remedies to victims.[60] State responsibility results from actions directly attributable to state agents, from those that only indirectly involve the state, and from a state's failure to prevent human rights abuses.[61] Even if government actors do not perpetrate such atrocities, but only condone them, the state bears responsibility for reparations. In addition, if the old regime that committed or tolerated the abuses does not provide compensation, the obligation carries over to the successor government.[62] Even states with severe economic problems must honor duties to compensate victims and ensure that the human rights of all persons under their jurisdiction are respected. Of course, individuals can also bring ordinary civil actions against those responsible for their injury and loss. However, the state is in a unique position to ensure that victims are compensated equally and according to need.[63]
In 1983, the U.S. Commission on Wartime Relocation and Internment of Civilians issued five recommendations regarding redress to Japanese Americans for wrongs done in 1942.
-- from "Relocation, Redress, and the Report: A Historical Appraisal," by Roger Daniels, p. 189, in When Sorry Isn't Enough |
Claims can be dealt with by private restitution or indemnification agencies, or by existing judicial or administrative agencies. Procedures for receiving and investigating claims for compensation should also be established, and the state should make these procedures publicly known. Claims procedures should respect an individual's right to privacy and should be as non-confrontational as possible.[64] They should also be simple and easy to understand, and should not discriminate against any one group of victims. No one may be coerced to waive claims for reparations.[65] In addition, the State should make all of its evidence concerning human rights violations available to former victims. However, the agencies dealing with these claims should take into account that tangible evidence may be limited or unavailable. Finally, it is crucial to employ an efficient, transparent, and fair administrative process with competent and trained staff.[66] Once decisions about reparations have been reached, they should be implemented in a diligent and prompt manner.[67]
Because it may take time before victims are psychologically capable of filing claims or accepting compensation, claims should not be subjected to strict statutes of limitations. Rather, former victims and their families should have an extended period of time for filing claims.[68] Claimants should be entitled to appoint legal representatives to act on their behalf, and the costs of this legal aid should be kept low. Finally, filing a claim should be free of charge.
Third parties often play a crucial role in ensuring that all former victims receive assistance. Agencies and mechanisms that deal with human rights can make recommendations to governments about compensation for those who have suffered from human rights abuses.[69] Outside actors can also insist that victims receive reparations and pressure governments to implement such programs. In many cases, countries need help to establish mechanisms to make effective remedies available. Outside governments often offer assistance to refugees who have been victims of human rights violations, and NGOs often assist with compensation efforts. This includes upholding victims' right to reparation, working to expose violations, and helping victims to pursue their claims.[70] In addition, more and more intergovernmental organizations are helping to fund projects that assist former victims.[71]
[1] Neil J. Kritz, "The Rule of Law in the Post-Conflict Phase," in Managing Global Chaos: Sources of and Responses to International Conflict, eds. Chester A. Crocker, Fen Osler Hampson, and Pamela Aall. (Washington, D.C.: United States Institute of Peace Press, 1996), 599.
[2] Theo van Boven, "United Nations Commission on Human Rights: Study Concerning the Right to Restitution, Compensation, and Rehabilitation for Victims of Gross Violations of Human Rights," in Transitional Justice: How Emerging Democracies Reckon with Former Regimes, vol. 1, General Considerations, ed. Neil J. Kritz, (Herndon, Va.: United States Institute of Peace Press, 1995), 509.
[3] Ellen L. Lutz, "After the Elections: Compensating Victims of Human Rights Abuses," in Transitional Justice: How Emerging Democracies Reckon with Former Regimes, vol. 1, General Considerations, ed. Neil J. Kritz, (Herndon, Va.: United States Institute of Peace Press, 1995), 557.
[4] Lutz, 553.
[5] van Boven, 508.
[6] van Boven, 515.
[7] Kritz, 599.
[8] Brandon Hamber, "Repairing the Irreparable: Dealing With Double-Binds of Making Reparations For Crimes of the Past," INCORE, [available at: http://www.incore.ulst.ac.uk/research/projects/thepast/repair.html, 3.
[9] Kritz, 599.
[10] Hamber, 1.
[11] Hamber, 3.
[12] Hamber, 4.
[13] Hamber, 5.
[14] Gunnar Theissen, "Supporting Justice, Co-Existence and Reconciliation After Armed Conflict: Strategies for Dealing With the Past" Berghof Research Center for Constructive Conflict Management. Available at: http://www.berghof-handbook.net/articles/theissen-handbook.pdf
[15] van Boven, 546.
[16] Roy Brooks, "The Age of Apology," in When Sorry Isn't Enough: The Controversy over Apologies and Reparations for Human Injustice, ed. Roy Brooks, (New York: New York University Press, 1999), 4.
[17] Lutz, 556.
[18] van Boven, 507.
[19] Theissen, 10.
[20] Hamber, 9.
[21] van Boven, 511.
[22] van Boven, 510.
[23] Hamber, 3.
[24] Theo van Boven et al., "Seminar on the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms: Summary and Conclusions," in Transitional Justice: How Emerging Democracies Reckon with Former Regimes, vol. 1, General Considerations, ed. Neil J. Kritz. (Herndon, Va.: United States Institute of Peace Press, 1995), 502.
[25] Lutz, 556.
[26] Theissen, 10.
[27] Brooks, 9.
[28] Hamber, 3.
[29] Van Boven, 507.
[30] Van Boven, 549.
[31] Van Boven et al., 503.
[32] Kritz, 594.
[33] Theissen, 10.
[34] Van Boven, 514.
[35] Kritz, 599.
[36] Hamber, 11.
[37] Hamber, 12.
[38] van Boven et al., 500.
[39] Lutz, 552.
[40] Lutz, 552.
[41] Theissen, 11.
[42] Hamber, 10.
[43] Lutz, 553.
[44] Hamber, 7.
[45] Hamber, 5.
[46] Hamber, 7.
[47] Theissen, 6.
[48] Hamber, 8.
[49] Theissen, 7.
[50] Hamber, 7.
[51] van Boven, 516.
[52] van Boven, 516.
[53] Lutz, 552.
[54] Lutz, 553.
[55] Lutz, 553.
[56] Lutz, 556.
[57] Lutz, 558.
[58] Lutz, 559.
[59] Lutz, 559.
[60] Van Boven, 548.
[61] Van Boven, 506.
[62] Kritz, 599.
[63] Lutz, 560.
[64] Lutz, 564.
[65] van Boven, 549.
[66] Theissen, 11.
[67] Van Boven et al., 504.
[68] Lutz, 562.
[69] Van Boven, 547.
[70] Van Boven, 547.
[71] Lutz, 557.
Use the following to cite this article:
Maiese, Michelle. "Compensation and Reparations." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: September 2003 <http://www.beyondintractability.org/essay/compensation>.
