International Framework for Reparation
- Charlotte & Merel
- Jan 10, 2021
- 3 min read
On the homepage of the blog, we refer to Schirrer (2020) by stating that an international framework for reparation claims is still missing. Although the United Nations play a significant role in creating awareness and promoting justice initiatives, a universal justice mechanism to address all individual claims is absent. However, in previous decades international organizations did attempt to create a framework for reparative strategies. On 16 December 2005 the General Assembly of the United Nations adopted the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (OHCHR, 2005).One of those basic principles is ‘reparation for the harm suffered’. According to the UN there are five forms to provide victims of gross human rights violations with full and effective reparation.
The first core element of reparation is restitution. It is described as the restoration of liberty; enjoyment of human rights, identity, family life and citizenship; return to one’s place of residence; restoration of employment and return of property. The core idea behind restitution is that the original situation before the violations is restored when possible.
Secondly, compensation has to be offered for any damage that can be translated into economical terms. This economically accessible damage includes physical or mental harm, lost opportunities, material damages and loss of earnings, moral damage, costs required for legal or expert assistance, medicine and medical services, and psychological and social services.
The third form of reparation is rehabilitation. This should include medical and psychological care as well as legal and social services.
Fourthly, reparation consists of satisfaction. Many different aspects are included in the idea of satisfaction. Some examples are measures aimed at the cessation of continuing violations, verification of the facts and full and public disclosure of the truth, an official declaration restoring dignity, reputation and rights of the victims, public apology, sanctions against persons liable for the violations, commemorations and tributes to the victims and educational material on the topic.
Lastly, reparation also includes guarantees of non-repetition. Those guarantees should include a variety of measures to contribute to the prevention of similar human rights violations in the future. For example, one of the measures proposed by the UN in order to do so, is strengthening the independence of the judiciary. Another one is protecting persons in the legal, medical and health-care professions; the media and other related professions; and human rights defenders.
In international law, reparation is thus regarded as a quintuple approach. Nevertheless, this approach tends to render the victims of human rights violations “abstract, deracialized, universal” (Nesiah, 2020). It does so by approaching victims of crimes against humanity without taking the internal differentiations of ‘humanity’ into account. Nesiah convincingly argues that the ‘human’ in humanitarian law is a “universally inclusive figure that does not implicate the structures and beneficiaries of racial capitalism”. Furthermore, these UN principles and guidelines act as a frame of reference or a source of inspiration, as we still depend on national governments to apply it to domestic law and policy (OHCHR, 2008). In case of reparations for slavery and colonialism, we can therefore interpret the critique of Schirrer as a call to open it up to a more complex analysis of the situation it aims to repair. By including the racial foundations of capitalism into the picture (Burden-Stelly, 2020), the existing international framework could also serve questions on reparation for colonization.
References:
Burden-Stelly, Charisse. “Modern U.S. Racial Capitalism: Some Theoretical Insights.” Monthly Review (2020): 8-20. Nesiah, Vasuki. “The Law of Humanity Has a Canon: Translating Racialized World Order into “Colorblind” Law.” PoLAR: Political and Legal Anthropology Review. Accessed January 9, 2021. https://polarjournal.org/2020/11/15/the-law-of-humanity-has-a-canon-translating-racialized-world-order-into-colorblind-law/. Office of the United Nations High Commissioner for Human Rights. “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.” United Nations Human Rights Office of the High Commissioner. Accessed January 9, 2021. https://www.ohchr.org/en/professionalinterest/pages/remedyandreparation.aspx. Office of the United Nations High Commissioner for Human Rights. “Rule-of-Law Tools for Post-conflict States. Reparations programmes.” Office of the United Nations High Commissioner for Human Rights. Accessed January 10, 2021. https://www.ohchr.org/Documents/Publications/ReparationsProgrammes.pdf. Schirrer, Anna Kristine. “Introduction: On Reparations for Slavery and Colonialism.” PoLAR: Political and Legal Anthropology Review. Accessed January 9, 2021. https://polarjournal.org/2020/07/31/reparations-for-slavery-and-colonialism/.
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