Perspectives | Transitional Justice

Reparations as a means of dealing with the past is necessary — and complex

By - 11.12.2017

In order to address needs, ‘reparations’ for wartime harm should first be understood.

Serious and persistent state crime occurred during the wars that burst out of the dissolution of Yugoslavia. Bosnia and Herzegovina and the neighboring region suffered the most harmful war (1992-95), but the Kosovo Memory Book documents that over 13,000 people were also killed and more than 590,000 were displaced during the war in Kosovo, which lasted from February 1998 until June 1999.

The international community has tried to do its part in setting up and funding international organizations and tribunals that would help with documenting and addressing the war crimes. Nevertheless, despite the fact that different courts have been set up and different tribunals have been enacted to prosecute the crimes that have been committed, much less has been done so far at any level — whether international, regional or local — to assess the harm generated by state crime and to understand reparations that are needed for the victims that were harmed by the war.

It is already known that even the people affiliated with the International Criminal Tribunal for the former Yugoslavia have called for measures other than “rendering of its judgements” to be implemented.

So reparations as such are to be seen as a part of the restorative justice approach.

Despite the fact that reparations as a concept have been mentioned, it is often used vaguely and there is not yet an accepted definition of it or of other related concepts such as restoration, redress, restitution, retribution, remedy, rehabilitation and reconciliation. Nor is there a consensus on their relationship with each other in the distinct, but also partially overlapping, debates on domestic restorative justice, international criminal justice and transitional justice.

Within domestic contexts, restoration and restorative justice have become the dominant expressions and have generated numerous programs all over the world, mostly consisting of victim-offender mediation and family conferencing that targets juvenile offenders, while other measures such as compensation or community service can also include a restorative element. Their main purpose, according to one of the leading criminologists, John Braithwaite, is “to repair the harm through conversations with those who have been hurt and with those who have inflicted the harm.” So reparations as such are to be seen as a part of the restorative justice approach.

The domestic conception of restorative justice shares a number of overlaps with both international criminal justice and transitional justice. According to academics Kathleen Daly and Gitana Proietti-Scifoni, first, “all identify the need for justice mechanisms for victims, not just offenders.” Second, “all recognize the limits of conventional methods of prosecution and trial.” Third, “all center on a more informal, dialogic process, although one circumscribed by law and legal limits … and sanctions that are linked in a meaningful way to offenses.”

Understanding reparations

In the international law and transitional justice field, some clarity has been brought to the various terms and what they encompass by the adoption of a 2006 UN Resolution. Titled “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,” the UN Resolution sets out three major rights for victims of international human rights and humanitarian law breaches: “access to an effective judicial remedy,” “adequate reparation” and “access to information.”

This conception clearly distinguishes reparations from national or international criminal justice processes of trial, conviction and punishment.

The principles and guidelines are necessarily dealing with a more complex issue than domestic restorative justice as they have been constructed with particular justice contexts in mind (human rights abuses during war, internal conflicts, and repressive political regimes). Unlike domestic restorative justice, reparations and restoration are here concerned not only with individuals but also with collectivities, and with regime change and state building.

Further, the UN Resolution breaks down the understanding of reparations by identifying five major forms that it takes: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.

Very often, reparations are only broadly spoken about as an entity that include apologies and monetary compensation. But the distinction provided between different forms of reparations is crucial.

All five of the major forms that reparations take are crucial when it comes to dealing with the third step of dealing with the past that I have written about previously: assessing victims’ needs and their direct link with reparations. (The first two steps should be instigating effective judicial measures, and creating a competent body to establish the truth of the past and to work out victims’ needs.)

Very often, reparations are only broadly spoken about as an entity that include apologies and monetary compensation. But the distinction provided between different forms of reparations is crucial.

For example, according to the UN Resolution, when we mention ‘restitution’ we talk about the possibility of 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.

‘Compensation’ on the other hand should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case. However collective monetary compensation for victims is still a very vague concept and this element of compensation is not really explained well as such under the UN guidelines.

‘Rehabilitation’ of victims refers to medical and psychological care as well as legal and social services.

‘Satisfaction’ remains one of the concepts that is mostly misunderstood. The UN guidelines say that ‘satisfaction’ means: public apologies, verification of the facts and full and public disclosure of the truth, the search for the whereabouts of the disappeared, judicial and administrative sanctions against persons liable for the violation, commemorations and tributes to the victims, and so on.

Last but not least, ‘guarantees of non-repetition’ at first glance seems very straightforward. However it includes a range of measures such as ensuring effective civilian control of military and security forces and protecting persons in the legal, medical, health care, media and other related professions, as well as human rights defenders. It also extends to strengthening the independence of the judiciary, and to promoting the observance of codes of conduct and ethical norms — in particular international standards — by public servants, including law enforcement, correctional, media, medical, psychological, social services and military personnel, as well as by economic enterprises.

Different victims have different needs

In Kosovo, several laws recognize compensation of material damage as a right — but provide no funds for it. Until recently, no compensation was foreseen for non-material damages. In February 2016, after a civic initiative that gathered 13,000 signatures, compensation for non-economic, or so-called “emotional damages,” was added to the Law on Public Financial Management and Accountability — at least on paper.

Last month, for the first time, a special budget — amounting to 200,000 euros — was established within the budget of Kosovo as compensation for victims of sexual violence during the war.

The good news is that finally these victims are in a way being acknowledged, but deciding upon what they need without consulting them first is wrong on different levels.

Firstly, it is important to note and document how many victims of wartime sexual violence there are. We still do not have exact data, and while we will never know the exact number of victims, an exhaustive process must be undertaken to give as many victims as possible the chance to come forward. Without knowing how many victims are identified, how do we know how much money to give to victims?

It is crucial to understand that the issue of dealing with the past should be approached in a systematic way, step by step.

Secondly, and most importantly, we need to address victims’ needs. How are we so sure that what these victims need is monetary compensation? As set out above, there are different forms of reparations that correspond to different needs of victims.

It is true that the civil society sector is trying to fill in many of these gaps by contributing to dealing with victims; various organizations are doing different work in several aspects of dealing with the past. Nevertheless these NGOs tend to conduct their work very much locally and it is the last moment for a state-coordinated initiative that brings these contributions together.  

Now is also the last moment to focus on reparations and to provide solace for people that need it. But before doing so it is crucial to understand one thing: Different victims have different needs. It is not important to just tick the boxes and to provide reparations that we think are suitable for victims. It is very important to make sure that we assess their needs properly and only then build up a strategy of reparations in line with victims’ needs.

To date, no such thing has been done. It is crucial to understand that the issue of dealing with the past should be approached in a systematic way, step by step. It is important not to go back and forth until the right way is found. It is important to find the right way and then to follow it.

By relying on the set of reparations provided by the UN basic principles and guidelines, the state of Kosovo should prepare an operational strategy that first documents what exactly happened, and to whom, and then address the needs of the victims that will directly lead to the adequate form of reparations.

Only then can we claim to have been able to properly address what happened during the war, and to adequately contribute, somehow, to repairing the harm.

Feature image: Majlinda Hoxha / K2.0. (Graffiti by Qart.)K

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