2007 Annual Student Human Rights Conference
24th February 2007
University of Nottingham Human Rights Law Centre
“International Criminal Accountability”
Alternative Forms of Justice
The Paradox of “Less For Gross, More For Minor” Revisited: Reparations as
Applied to Gross Violations of Human Rights.
Mirakmal M. Niyazmatov
The present paper is an attempt to address the challenges for reparation programs in the aftermath
of large scale and intense human rights violations. Assuming that a State is willing to carry out
reparatory policies, the paper will propose several basic modalities of reparation policies that can
be carried out in such cases.
The last fifteen years were plenty for successful reparation cases both on international and national
levels. Recent reparations awarded by the Inter-American Court of Human Rights, the European
Court of Human Rights and adjudication on national level in Latin American countries are the best
examples. Can we expect the same willingness to award reparations in cases of human rights
violations with extreme gravity and scale? Providing reparations to the victims in Cambodia,
Rwanda and Darfur is very problematic. The conflicts just mentioned count hundreds of thousands
if not millions of victims. In such cases of intense and widespread human rights violations, the
application of reparations becomes far more complex. The possibility of getting any kind of
reparation is directly proportional to the heinousness of the crimes committed and the numbers
involved. Despite this fact, effective reparation measures are indispensable if a post-conflict State
seeks to achieve true and long-term peace in the country.
The UN 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 (hereinafter the UN Guidelines) reflect the latest developments in the sphere of
State responsibility for gross violations of human rights and humanitarian law. They provide for the
following forms of reparations: restitution, compensation, rehabilitation, satisfaction and guarantees
of non-repetition. The UN Guidelines require that the reparations must be proportionate to the
gravity of the violations and thus be adequate, effective and prompt. Even though it is hard to apply
the requirements of adequateness, effectiveness, promptness and proportionality in cases of large
scale human rights violations, a successful reparation policy can still be elaborated and effectively
applied.
There exist two main approaches to reparations: judicial and administrative approaches. In the
aftermath of large scale violations of human rights, a State should primarily use administrative
approach. The judicial approach, if chosen as a primary approach, may create a number of serious
problems for judiciary, and consequently render itself ineffective: case overload, lack of legal
Name:
Mirakmal M. Niyazmatov
University:
University of Notre Dame Law School
Programme: LL.M in International Human Rights Law
2007 Annual Student Human Rights Conference
24th February 2007
University of Nottingham Human Rights Law Centre
“International Criminal Accountability”
personnel after the conflict, inability of judges to effectively adjudicate, lack of necessary legal skills
and financial ability to litigate. For these reasons, a State should consider the administrative
approach to reparations as a primary method of reparations.
Reparation policy of the government should start with non-monetary measures, specifically with
satisfaction (also referred as moral or symbolic reparations). Satisfaction is more about official
disclosure of truth, public apologies, establishment of commemoration days, etc. It can be preferred
because of [a] moral and [b] economic (practical) considerations:
a.
Moral considerations - Victims want to see the official recognition of guilt, disclosure of
truth and public apologies before any monetary compensation is provided.
b.
Economic considerations - State’s economic condition in a post-conflict situation is
unstable and thus it is less likely that it will be willing to carry out monetary
compensations.
Satisfaction should be backed with monetary compensations. The followings should be taken into
consideration in introducing monetary compensations:
a.
Monetary compensations should be in the form of one-time payments.
b.
“Fixed-sum-for-all” reparations should be avoided.
Monetary compensations should start with rehabilitation. It includes medical, and psychological
care, as well as other social services to the victims. Service packages usually include medical,
educational and housing assistance.
Instances of disagreement over the issue of awarded monetary compensations are inevitable. In
such a case victims should be guaranteed a right to appeal to judiciary. This is one of the instances
when judicial approach can be used as a complimentary to administrative approach.
To conclude, I believe that successful reparation policies can be carried out even in the aftermath of
those conflicts that involved large number of victims. Such a policy should primarily focus on
administrative reparation programs and start with moral reparations to have positive impact on
restoring victims’ dignity and raise public awareness about the harms victims have suffered. To
address victims’ basic economic and social needs, moral reparations should be continued with
monetary payments. Legal disputes deriving from these measures must be resolved in the court of
law.
Name:
Mirakmal M. Niyazmatov
University:
University of Notre Dame Law School
Programme: LL.M in International Human Rights Law