Victims

Under international law, victims of human rights abuse have a right to a remedy and to reparations for violations committed by or with the acquiescence of the state. Thorny questions arise over who can be considered a victim, the types of damages or reparations available, and the relationship of victims to the prosecution of offenders.

Starting in 1989, the United Nations Sub-Commission on Human Rights developed a set of principles on reparations, now known as the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law. In addition, the UN human rights treaty bodies and the regional human rights commissions and courts, especially in Latin America and Europe, have considered several aspects related to victims and reparations. National courts and administrative compensation schemes have also contributed to defining issues involving victims.

Who are Victims?

The UN's Basic Principles document, in paragraph 8, defines a victim as follows:

A person is a "victim" where, as a result of acts or omissions that constitute a violation of international human rights or humanitarian law norms, that person, individually or collectively, suffered harm, including physical or mental injury, emotional suffering, economic loss, or impairment of that person's fundamental legal rights. A "victim" may also be a legal personality, a dependant, or a member of the immediate family or household of the direct victim, as well as a person who, in intervening to assist a victim or prevent the occurrence of further violations, has suffered physical, mental, or economic harm.

Defining who is a victim in concrete circumstances can often prove difficult and controversial, especially where there are large numbers of potential victims. In the wake of large-scale atrocities, countries have grappled with defining victims for purposes of governmentcreated reparations programs. For example, in Chile the government decided to focus solely on those killed and disappeared by the security forces, leaving aside the vastly larger number of those who were tortured while in detention and survived, and those who were forced into exile. While this decision was justified as a way to spend limited funds on the "worst" violations, the effect was to infuriate survivors. According to a 2002 study by the Chilean human rights group CODEPU, survivors read this as a lack of recognition for the severity of their own suffering and an attempt to paper over the extent of the crimes. In South Africa, the mandate of the post-apartheid Truth and Reconciliation Commission similarly restricted the category of "victim" to those who suffered from the gross violations—killing, torture, abduction—prohibited under South African as well as international law. Critics of the TRC pointed out that this limited mandate excluded the legal pillars of apartheid: forced removals, passed laws, residential segregation and other forms of racial discrimination and detention without trial. By doing so, it shifted the focus from the complicity and benefits of apartheid to whites as a group to the misdeeds of a smaller group of security force operatives, easily characterized as "bad apples." The definition of "victim" thus acts to limit and frame discussion over reparations.

The definition of victim can also raise difficult issues that touch on family and customary law. In both court-generated and administrative reparations schemes, it has been easy to define the persons who have been physically or mentally harmed, and their spouses and children if they are deceased, as victims as a result of that loss. Moreover, courts, including the European Court of Human Rights, have found that the family members of the victim of a forced disappearance are themselves victims, as the product of the anguish and uncertainty of not knowing the fate of their loved one, or, more generally, of a human rights violation and the subsequent impunity of the perpetrators. Administrative compensation schemes have taken one of two routes: either they have compensated the immediate victims, and allowed their heirs and successors (as defined in local law) to receive the compensation if the victims were dead or disappeared, or they have specified the percentage of awards to be paid to each category (spouse, child, etc.) of surviving relatives in cases of death.

Regional human rights courts have also grappled with the definition of victim for purposes of assigning compensation. In the case of injuries resulting in death, both the European and Inter-American Courts of Human Rights allow claims for the harm to the victims themselves prior to death, to their families for wrongful death, and for family members' own harms in conjunction with the abuses against the persons killed. Both economic and moral damages are covered. The Inter-American Court, in its extensive jurisprudence on reparations, has developed a particularly expansive definition of family, which includes siblings as well as spouses, parents, and children of the person killed or disappeared. If the victim survives, he or she can of course bring claims on his or her own behalf, but the court has also presumed (in a 1999 case involving Ecuador) that close family members have suffered in cases of detention, torture or unfair trial, and awarded compensation to them. In addition to suffering and health damage, the court has awarded family members compensation for the costs of burial, and for the costs (including lost income) incurred in looking for the victim.

The court has also taken cultural attributes of the victim into account in awarding reparations. Rather than strictly apply national laws on inheritance, the court has defined its own principles, which includes taking into account "local law," including customary law. In the 1994 Aloeboetoe case, the court found that customary law among the Saramacas, or Maroons, of Suriname, included multiple marriages. In a case involving the summary execution of a number of Saramaca men, the court allowed reparations for the multiple wives and children of the victims. In a 2002 case involving the disappearance of a Guatemalan Ma'am indigenous leader, the court allowed damages for support of the victim's father and half-sister, based on evidence that Ma'am culture required the elder brother to support parents and younger siblings.

Victims can be collectivities as well as individuals and family members. The clearest example is the destruction of property as part of a campaign of genocide or "ethnic cleansing." The destruction of a mosque, church, temple, or synagogue creates a collective harm to the community that worshiped there, and that community (perhaps represented by the religious authorities) is the victim. More generally, collective reparations may be needed when the destruction of a community has been so thorough that there are few survivors left to file claims or they have been dispersed so widely that the original community has ceased to exist. Compensation may include payment for the loss of community cohesion, community institutions and culture.

Individual reparations fail to capture the collective element of the harm in situations of genocide or crimes against humanity. A major aim of the organizers of atrocities is the destruction of the community fabric. The attempt is not simply to kill, but to isolate, terrorize, and sow distrust. Military forces may seek to make local civilians complicit in atrocities, forcing them to watch or even to participate in the violations of their neighbors' basic human rights. These harms to community life and trust cannot easily be redressed through individual awards.

In addition to individual claims for loss of life or liberty, damage to health, loss of jobs, pensions, and economic prospects, Germany paid collective reparations to Jewish organizations and to the State of Israel after the Holocaust. Survivor organizations argued that collective reparations were necessary to compensate for the property, lives, and suffering of those with no living heirs or dependants, for the loss of institutions and communities, and for the damage to the very fabric of the Jewish people's existence. A total of $3.45 billion deutsch marks were eventually paid to Israel for acts against the Jewish people, in addition to substantial amounts of compensation to other European states and to individual victims and survivors.

Courts have generally been reluctant to design categories of collective reparations. In the above-referenced Aloeboetoe et al. case before the Inter-American Court of Human Rights, the court grappled with the issue of collective moral reparations. The court first discussed and ultimately denied the request for monetary compensation, as follows:

[T]he Court believes that all persons, in addition to being members of their own families and citizens of a State, also generally belong to intermediate communities. In practice, the obligation to pay moral compensation does not extend to such communities, nor to the State in which the victim participated; these are redressed by the enforcement of the system of laws. If in some exceptional case such compensation has been granted, it would have been to a community that suffered direct damage (Aloeboetoe et al., paragraph 83).

However, in the final statement of reparations, the court, in paragraph 95 of its decision, "orders the State of Suriname, as an act of reparation, to reopen the school house located in Gujaba and staff it with teaching and administrative personnel so that it will function on a permanent basis as of 1994, and to make the medical dispensary already in place in that locality operational during that same year." These measures to provide education and health care to the community in effect formed a kind of collective reparations.

A second case in which the Inter-American human rights system grappled with the prospect of collective reparations is Chanay Pablo v. Guatemala, more commonly referred to as the Colotenango case. Members of a paramilitary civil patrol opened fire on a group of protesters in the town, killing Juan Chanay Pablo and injuring several others. The victims filed a complaint in the courts and subsequently in the Inter-American Commission on Human Rights. Throughout this period, civil patrol members frequently intimidated and attacked the witnesses, the accusers, and an attorney participating in the case. Guatemala and the Commission, were able to reach a friendly settlement in March 1997. Guatamala agreed to provide Q300,000 (some $43,000) to financially compensate the individuals directly affected by the Colotenango attack, and to ensure that justice was done. In addition, "the State of Guatemala shall provide communal assistance to the affected communities of Colotenango, in accordance with a program of projects agreed upon by the parties."

Outside the context of collective victims, courts and administrative schemes have generally not recognized bystanders or witnesses to crimes against humanity as victims for purposes of reparations, at least without a showing of personal harm. One question that has arisen is whether those who are not part of the target ethnic group, but who are killed because they are attempting to defend the target group, can be considered victims of genocide. In a case involving genocide against the Mayan people of Guatemala, brought in Spain, a bare eight-judge majority of the Spanish Supreme Court found in 2003 that Spanish priests who had been killed or disappeared for their work with poor, mostly Mayan communities could not bring genocide charges on their own behalf, as Spanish citizens had not themselves been the target of a genocidal campaign. The seven dissenting judges argued that, as victims targeted because they were defending others from genocide, the priests should be considered equally as victims of genocide.

In situations of genocide or massive crimes against humanity, international tribunals have not to date provided specific help to victims. In Rwanda, the International Criminal Tribunal for Rwanda (ICTR), through the Office of the Registrar, attempted to provide minimal support for witnesses coming before the Tribunal, who were often in desperate financial straits. On its own initiative, in September 2000, the Registrar's office launched an initiative to provide legal advice, psychological counseling, physical therapy, and monetary assistance, and also contributed to a number of projects in Taba township, the locality where the mayor was convicted of genocide and where there were hundreds of survivors, most of them destitute women. But the Tribunal soon found that the needs far exceeded its capacity, that it was ill-equipped to design and administer reparations schemes, and that to do so adequately would require the amendment of the Tribunal's statute and rules. The effort was scaled back, although the judges and prosecutor agreed that the Security Council should amend the ICTR's statute to allow it a greater role in compensation. The statute of the International Criminal Court (ICC) allows the ICC to award reparations, and sets up a trust fund to compensate victims of genocide, crimes against humanity, and war crimes, but as of 2004 it had minimal resources and had not yet made any awards.

What Rights Do Victims Have?

First, and most importantly, victims have a right to a remedy, and to reparations for harm done. The law on reparations arises in part from the requirements of international human rights treaties, and in part evolves from the law of state responsibility, which prescribes the reparations states must pay to other states for international law violations, including harm to the citizens of the aggrieved state. The basic human rights instruments encompass a "right to a remedy." Article 8 of the Universal Declaration of Human Rights holds that "[e]veryone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law." Article 2 of the International Covenant on Civil and Political Rights, in subsection 3, requires parties to "ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity," and article 9, subsection 5 requires compensation for unlawful detention, article 14, subsection 6, specifies compensation for wrongful conviction. Articles 6 and 13 of the European Convention, and articles 8 and 25 of the American Convention on Human Rights have similar provisions, as do the Convention against Torture and the Convention on the Elimination of Racial Discrimination, in Articles 14 and 6, respectively. Other specialized treaties and non-binding human rights instruments also call for compensation to victims. The statute of the International Criminal Court recognizes that individual offenders can also owe reparations, and sets out provisions on reparations in articles 75 and 79.

The UN Draft Principles recognize both material and moral elements to reparations. Material reparations for an individual may include the restitution of access to, and title of, property taken or lost, a job, freedom, or a pension or a person's good name. They may include medical, psychiatric, or occupational therapy aimed at rehabilitation. They may encompass monetary compensation in the form of a lump sum, a pension, or a package of services for the victim and for the survivors of those killed. For collectivities, restitution of cultural or religious property, communal lands, or confiscated public buildings, and compensation for such property as cannot be returned, are options.

Moral reparations are as important—generally more important from the victims' perspective—than material ones. They cover a wide range of measures, most having to do with a felt need for telling the story, for justice, and for measures to avoid the repetition of crimes. They may include disclosure of the facts of a victim's mistreatment or a loved one's death, disclosure of the names and positions of those responsible, and disclosure of the patterns of repression. They may include official acknowledgement that government agents wronged the victims, and an apology may be officially offered. They may also include the guarantee that those responsible suffer consequences, whether criminal, civil, or administrative will be brought to justice and removed from positions of power.

Moral reparations may also be as basic as the identification and exhumation of the bodies of victims, and assistance in reburials and culturally appropriate mourning ceremonies. Assistance with finding the bodies of the dead or disappeared (that is, those kidnapped and surreptitiously killed, usually by security forces) is particularly key. These moral reparations also have a collective aspect, when entire communities dedicate memorials or markers to their dead. Other collective measures of moral reparation may include days of remembrance, the dedication of parks or other public monuments, renaming of streets or schools, preservation of archives or of repressive sites as museums, or other ways of creating public memory. Educational reform, the rewriting of history texts, and education in human rights and tolerance are all encompassed within the idea of "guarantees of non-repetition." So too, in a broader sense, are the reform of courts, police and military forces, and other arms of state authority that may be implicated in the original violations.

The trend in international law, finally, is to open up both civil and criminal court processes to allow increased access and voice to victims. Thus, the Inter-American Court of Human Rights in 1997 changed its procedures to allow victims direct representation before the court, rather than indirect representation through the Inter-American Commission. The European Convention on Human Rights has allowed direct victim representation since its Protocol 11 entered into force in 1998. The Rome Statute of the ICC similarly allows victims to be present, and at certain points to make representations before the court. The Colombian Constitutional Court, in the 2003 Acevedo Martelo case, held that in cases of human rights violations (as opposed to common crimes), the rights of victims had to be given considerable weight, and could override the rights of defendants to not have their cases reopened.

The rights of victims to be granted access to a remedy, to reparations, and to some level of participation in criminal processes will, of course, be more complex in situations of genocide or crimes against humanity, given the sheer numbers of victims and the limited resources available. A mixture of individual and collective measures, and of moral and material reparations, will, under the best of circumstances, be the most that can be done, and yet be less than ideal. Creativity and attention to how these issues fit into larger reconstruction and development processes will be needed in such situations, if these rights are to be made a reality.

SEE ALSO Compensation; Psychology of Survivors; Reparations

BIBLIOGRAPHY

Barkan, Elazar (2000). The Guilt of Nations: Restitution and Negotiating Historical Injustices. Baltimore, Md.: Johns Hopkins University Press.

Brooks, R. L., ed. (1999). When Sorry Isn't Enough: The Controversy over Apologies and Reparations for Human Injustice. New York: New York University Press.

CODEPU/APT (2002) Truth Commissions: An Uncertain Path? English executive summary available from http://www.apt.ch/americas/mexico/Executive%20Summary.pdf.

Mani, Rama (2002). Beyond Retribution. Cambridge, U.K.: Polity Press.

Pross, Christian (1998). Paying for the Past. Baltimore, Md.: Johns Hopkins University Press.

Sancinetti, Marcelo A., and Marcelo Ferrante (1999). El Derecho Penal en la Proteccion de los Derechos Humanos. Buenos Aires: Hammurabi.

Shelton, Dinah (1999). Remedies in International Human Rights Law. Oxford: Oxford University Press.

Torpey, John, ed. (2003). Politics and the Past: On Repairing Historical Injustice. Lanham, Md.: Rowman & Littlefield.

United Nations (2000). "Report to the Secretary-General of the ICTR," U.N. Doc. S/2000/1198, 15 Dec. 2000. The ICTY came to similar conclusions, see U.N. Doc. S/2000/1063, 2 Nov. 2000.

United Nations Sub-Commission on Human Rights (2003). Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of Internaitonal Human Rights and Humanitarian Law, Rev. 15 (August). Available from http://www.unhchr.ch/html/menu2/revisedrestitution.doc.

Vandeginste, Stef (2003). "Victims of Genocide, Crimes Against Humanity, and War Crimes in Rwanda: The Legal and Institutional Framework of Their Right to Reparation." In Politics and the Past: on Repairing Historical Injustice, ed. John Torpey. Lanham, Md.: Rowman & Littlefield.

Wilson, Richard A. (2001). "Justice and Legitimacy in the South African Transition." In The Politics of Memory, ed. Alexandra Barahona de Brito, et al. Oxford, U.K.: Oxford University Press.

Naomi Roht-Arriaza