Reparations for Historical Wrongs

On 14 April, The Hague Institute and Doughty Street International hosted a panel discussion entitled “Reparations for Historical Wrongs”. The panelists drew upon their extensive academic background and field experience to discuss challenges with regard to reparations for victims of historic/mass crimes.

Mr. Stephen J. Rapp, former U.S. Ambassador-at-Large for War Crimes and Distinguished Fellow at The Hague Institute, provided welcoming remarks and moderated the discussion. He prefaced the debate by stressing that providing reparations to date has been a shortcoming of international criminal justice. Drawing on his experience as third Chief Prosecutor of the Special Court of Sierra Leone and Senior Trial Attorney and Chief of Prosecutions at the International Criminal Tribunal for Rwanda, he emphasized the need to advocate for the victims of such atrocities and offer them tangible compensation. He recognized that the international criminal trials that have already been established in The Hague and elsewhere, with former presidents and other powerful leaders brought to account, have raised the expectations of victims and survivors across the planet. Yet, there were still challenges of assessing responsibility in cases of mass atrocities committed beyond the direct memory of living witnesses and where the responsible individuals, at all levels, were no longer present. Ambassador Rapp added: “this is why it is so important to have trials while the actors are still living”. Ambassador Rapp concluded that these crimes of mass suffering struck a deep emotional chord in all of us and raised the question as to whether formal legal processes could be expected to repair historical wrongs.

Judge Ann Power-Forde, Judge at the ECtHR from 2008 – 2014, looked at the subject from the point of view of the Strasbourg Court’s jurisprudence, noting that there were several ways in which the Court addressed the issue of reparations, through the ordering for restitution of property, payment of significantly large sums to victims and their families, or the ordering of general measures to be taken by a state in order to investigate certain historic wrongs. Turning to the case of enforced disappearances, Judge Power-Forde emphasized the challenges confronting the investigation of mass crimes, due to long time frames and a lack of documentation. While referencing a few ECtHR cases, such as Macalu vs. Romania or El-Masri vs. the Former Yugoslav Republic of Macedonia, she emphasized the right of victims to know what happened and the need for accountability. Furthermore, she noted that there was a gradual development to the right to know the truth not only on the part of the individual, but also on the part of society. In this context, she placed the Strasbourg Court among other European institutions that could offer some sort of redress to the victims of such heinous atrocities.

Professor Liesbeth Zegveld, lawyer at Prakken d’Oliveira and Professor of War Reparations at the University of Amsterdam, commented on historic wrongs committed in Indonesia in 1947 by the Royal Netherlands East Indies Army in the village of Rawagedeh, as a positive example of reparations for such crimes. In an unanticipated judgment delivered on 14 September 2011, The Hague Court of First Instance declared the Dutch massacre in Rawagedeh wrongful, set aside existing statutory limitations, and held that reparations should be awarded to victims, that were represented by Ms. Zegveld. She emphasized the importance of recognition of what actually happened, adding that “the assumption is that victims want money, but apologies can also repair the harm done”. The victims, widows of 85 years and older, were more interested to get recognition for the suffering inflicted on them, rather than significant amounts of money. A month after the case closed, and exactly 64 years since the massacre, the Dutch ambassador travelled to the Indonesian village and expressed apologies to the victims and their relatives. This was definitely an important component of the success of these apologies as they were issued in the right place, the village where the crimes were committed and where the widows lived.

Ms. Kirsty Brimelow QC, international human rights lawyer at Doughty Street International, stressed that the intentions of victims of historical wrongs were not the same in every case, and she offered background information on her work dealing with the peace movement in Columbia. San Jose De Apartado Peace Community is one of the communities in the war-torn country that attempted to move closer to resolving the country’s decades-old violence by maintaining an active and credible distance from all major parties to the conflict, namely the Colombian government and the Revolutionary Armed Forces of Colombia (FARC). A massacre took place in 2005 that killed seven members of the community. In this context, Ms. Brimelow noted that the community had rules for no reparations for victims, but what “is important is recognition of what happened and public apology”. The December 2013 apology in which President Santos retracted the “unjust accusations against the Community” was considered to be an historic moment. She described it to be “a very moving speech to the community, to Columbia and the world”. Concluding, Ms. Brimelow added that the apology signified an acceptance that the members were not part of those that were carrying out murders.

Dr. Lyal S. Sunga, Head of the Rule of Law program at The Hague Institute, spoke about the role of the United Nations and his experience in investigating the genocide in Rwanda. His role as an investigator was to reckon with the situation on the ground, to determine facts and responsibilities and to recommend what measures the Security Council should take to provide justice for victims, survivors and Rwandan society at large. It was the UN Commission of Experts on Rwanda that recommended to the Security Council in 1994 that it establish the International Criminal Tribunal for Rwanda. Dr. Sunga argued that reparations were not only about money, but that in the immediate aftermath of the genocide, even small amounts of money, or provision of seed for crops, could prove critical for survival at a time when agricultural production had been so seriously disrupted. Furthermore, he stressed that international criminal justice had dealt mostly with retribution rather than reparation.

Even at the domestic level, criminal law systems remain very much focused on finding guilt, rather than assisting the victims. As an alternative, Dr. Sunga talked about the human rights regime, which was more flexible and which showed fuller recognition for the rights of victims to know what happened and to ensure criminal responsibility of perpetrators through fair and effective investigation and prosecution, to ensure non-repetition of serious violations for the future. Dr. Sunga also underlined that the past very much conditions the present and future and that it was therefore essential to recognize serious historical wrongs and ensure that appropriate reparations were provided to affected communities, particularly those, such as certain indigenous groups, which remained marginalized, discriminated against, underprivileged and in some cases, persecuted.

In closing, Dr. Sunga recognized as alternative methods the role of education, human rights and integration, protection for minority rights, and symbolic measures that could help to prevent denial of atrocities, such as official apologies and recognition, especially in situations where the State had been complicit in or an active perpetrator of serious violations of human rights, humanitarian law or international criminal law.

Unfortunately, Mr. Tony Gifford was unable to join the discussion in person. His contribution planned to touch upon the transatlantic slave trade and the institution of chattel slavery in the Americas, where horrendous acts of crimes against humanity were committed. He intended to argue that the concept of reparation for such crimes was well established, and that the right to reparation did not end when the first victims died. Drawing on his work and experience in Jamaica, he emphasized the consequences of a lack of reparation for victims of slavery: ill health, loss of identity, fractured relationships, violence, inequality and massive public debt. Mr. Gifford considers that there was still a huge need for assistance to find remedies, framing arguments, and supporting the claim of African and Caribbean people that were victims of such atrocious crimes.

Following the panel discussion, Ambassador Rapp moderated a question and answer session. Questions from the audience focused on the historical wrongs committed in Africa, the Armenian genocide, the issue of compensation and how to actually gain acknowledgement of mass/historical crimes committed decades ago.

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