Reparation for victims of civil war
Dr. Ruwantissa ABEYRATNE
CONFLICT: Statistics reveal that during armed conflicts,
civilian casualties often exceed those of the military. The Washington
Post of March 11, 2006 recorded that as of that day, whereas the number
of civilians killed in Iraq reached anywhere between 33,489 to 35,569,
the number of United States military personnel killed was 2,308. This is
a ratio of 14:1.
The International Law Association (ILA), at its Seventy-Second
Conference held in Toronto in June 2006 addressed the issue of
compensation for victims of war and recognised the startling reality
that while the families of American soldiers killed are well compensated
by the United States Government (as indeed it should) those of Iraqi
civilian casualties are not.
This is quite disturbing. To add to the inequity, when victims of war
file suits against a responsible State before the court of their home
State or a third State, they will be confronted with State immunity as
one of the hardest procedural obstacles to overcome.
Reparation
In its most fundamental sense, the concept of reparation is an
extension from its original meaning “repair”. Reparation is defined as
“the act or an instance of making amends”, which usually takes the form
of an award of compensation to one who has suffered injury, loss or
wrong at the hands of another.
At criminal law, reparations usually denote a process of making
amends by an offender to his victim, or to victims of crime generally.
From an international perspective, the operative law with regard to
victims of war is international humanitarian law. This limb of law is
also known as the law of war, the laws and customs of war or the law of
armed conflict.
Basically, international humanitarian law encompasses four limbs, the
first being that persons who are not, or are no longer, taking part in
hostilities shall be respected, protected and treated humanely. They
shall be given appropriate care, without any discrimination.
Secondly, captured combatants and other persons whose freedom has
been restricted are required to be treated humanely.
They should be protected against all acts of violence, in particular
against torture and if they are brought to trial they have the right to
enjoy the fundamental guarantees of a regular judicial procedure.
Thirdly, the right of parties to an armed conflict to choose methods
or means of warfare is not unlimited. No superfluous injury or
unnecessary suffering shall be inflicted.
Convention
Finally, in order to spare the civilian population, armed forces are
required at all times to distinguish between the civilian population and
civilian objects on the one hand, and military objectives on the other.
Neither the civilian population as such nor individual civilians or
civilian objects should be the target of military attacks.
Within these four precepts, international humanitarian law is
entrenched as the legal corpus comprised of the Geneva Conventions and
the Hague Conventions as well as subsequent treaties, case law, and
customary international law.
The Geneva Conventions consist of four treaties formulated in Geneva,
which set the pace in Standards for international law as applicable to
humanitarian concerns.
The fourth Convention, which relates to the protection of civilians
during times of war in the hands of an enemy and under any occupation by
a foreign power, provides in Article 3 that even where there is not a
conflict of international character the parties must as a minimum adhere
to minimal protections that should be accorded to certain categories of
persons.
These persons are described as: non-combatants, who usually are
civilians, members of armed forces who have laid down their arms, and
combatants who are hors de combat (out of the fight) due to wounds,
detention, or any other cause.
Article 3 also requires these persons to be in all circumstances
treated humanely, with the following prohibitions:
(a) violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and
degrading treatment;
(d) the passing of sentences and the carrying out of executions
without previous judgment pronounced by a regularly constituted court,
affording all the judicial guarantees which are recognised as
indispensable by civilized peoples.
Article 4 defines a person protected by the Geneva Conventions as one
who, at a given moment and in any manner whatsoever, finds himself, in
case of a conflict or occupation, in the hands of a Party to the
conflict or occupying power of which he or she is not a national.
However, it explicitly excludes nationals of a state which is not
bound by the Convention and the citizens of a neutral state or an allied
state if that state has normal diplomatic relations within the State in
whose hands they are.
Compensation
It must also be noted that the term “war” is no longer used in its
traditional restrictive sense of a conflict involving international
dimensions.
In the modern sense, war is any prolonged state of violent,
large-scale conflict involving two or more groups of people and is now
considered to include non-international armed conflicts as referred to
in Article 3 of the fourth 1949 Geneva Convention.
Also, humanitarian law does not apply only to victims of wars between
international actors. Professor Rainer Hoffman, in his report to the
International Law Association’s seventy-second conference observed that
if present international law admits of an individuals’ right against a
State for injuries suffered during the course of a war in which that
State is involved, it must necessarily follow that it is difficult to
maintain that the same right might not prevail against international
organisations and non-State actors.
He further states that if such Organisations and non-State actors are
subjects of international law and engage in acts which could have been
committed, under traditional international law, only by States and thus
behave like or as States, then they should, in principle be held
accountable in the same way as States.
It is noteworthy that the term “compensation” has also undergone some
revision in recent times to accommodate modern exigencies of warfare.
The majority of the Committee Members of the ILA Committee that went
into the subject of compensation for war victims were of the view that
the term was too narrow.
They observed that, in view of the present state of international law
relating to the consequences of internationally wrongful acts, there is
wide justification to extend the term to include all forms of reparation
such as restitution, compensation stricto sensu, rehabilitation,
satisfaction and guarantees of non-repetition.
Right of return
Another term that came under review was “victim” and there was
consensus in the Committee that a victim could include both categories
of natural and legal person, meaning that a male or female, as a natural
person, could be as much a victim as a corporate entity or organisation.
It is interesting to note that the International Red Cross has
recognised as a rule of customary international law the principle set
out in the second paragraph of Article 49 of the fourth Geneva
Convention, which provides that persons displaced during armed conflict
must be transferred back to their homes as soon as hostilities in the
area in question have ceased.
This right is often referred to as the “right of return” and has been
reaffirmed in later international treaties and conventions.
It is a general principle of international humanitarian law that any
wrongful act or violation of an obligation under international law gives
rise to an obligation to make reparations.
As discussed earlier in this article, the international community is
forging toward recognising an extension of the scope of this principle
to acts of non-States parties.
The American Convention on Human Rights and the European Convention
for the Protection of Human Rights and Fundamental Freedoms address the
issue and contain text which endorse this principle.
Furthermore, Resolutions of the United Nations General Assembly have
endorsed general principles regarding redress and reparations, and the
Council of Europe has adopted a Convention to regulate and improve
existing compensation schemes in member States.
Finally, the U.N. Human Rights Committee has required that
compensation be paid to victims of prolonged imprisonment and torture,
and to the relatives of victims of disappearance and summary execution.
Such measures bring to bear the fact that the right to restitution or
compensation is setforth in humanitarian law and in customary
international law.
Truth commissions
Norms of humanitarian law are also enshrined in decisions of courts.
Arguably the best known example is the decision rendered in the Vel squez
Rodr¡guez case, handed down by the Inter-American Court of Human Rights
against the government of Honduras.
The case involved the disappearance of Manfredo Vel squez, a Honduran
citizen. The court was unequivocal in its decision that the State of
Honduras was legally obligated to compensate the victim’s family.
The Court went on to define reparation as full restitution, which
included the restoration of the status quo ante or prior situation, the
reparation of the consequences of the violation, and indemnification for
patrimonial and non-patrimonial damages, including emotional damage and
injury.
The best known examples of post civil war reparations and measures
taken thereupon are Chile, El Salvador and Guatemala. The past decade
has seen the establishment of “truth commissions” which are official
governmental bodies formed to look into victimization in the past during
armed conflicts.
In El Salvador and also in Guatemala in particular, truth commissions
were used to delve into the past against the backdrop of government
negotiations for a transition from civil war to peace.
In the Latin American communities, these truth commissions are widely
considered as a sound base for national reconciliation and reparative
measures.
In Chile, a national commission was set up to account for the dead
and those who had disappeared without a trace in the country.
In pursuance of its findings, the Chilean Commission recommended that
specific measures be taken to compensate the relatives of the victims.
As a result, the legislature enacted Law No. 19.123, published in the
Official Daily on February 8, 1992.
The law established a National Corporation for Reparation and
Reconciliation, which was essentially a temporary, decentralised State
organ under the Ministry of the Interior with a two-year mandate to
provide compensation to victims’ families and develop programmes to
foster a “culture of respect for human rights” in Chile.
The reparations included such awards as monthly pensions, fixed-sum
payments, health benefits, and educational benefits.
Below poverty line
The law also provided for victims and their families whose income was
below the poverty line to receive free healthcare services in the
national healthcare system.
In addition, the Ministry of Health established a “Programme of
Reparation and Integral Healthcare” to ensure that individuals affected
by human rights violations had access to good health care benefits such
as general medical care, social services, psychological counselling, and
other services free of charge.
These facilities were also given to the victims’ parents, children or
siblings who were eligible to receive this assistance.
Educational services and special educational benefits were given to
children of victims until they reached the age of 35.
The law explicitly provides that children studying in secondary
schools, universities, professional institutes or technical institutes
shall receive scholarships to pay for registration and tuition fees,
plus a monthly allowance to cover living expenses. Finally, the law
exempts children of victims from mandatory military service.
Compensation
Argentina is another interesting study. The Government’s first
initiative was to establish an official national commission (CONADEP) to
inquire into the disappearances that occurred during military rule.
The Commission documented 9000 cases which resulted in a decision of
the President to the effect that several former military leaders should
stand trial.
Nine high-ranking officials were later tried and several convicted of
human rights violations, and the courts were inundated with individual
complaints.
Some years later, President Menem signed a decree making persons who
had been detained for political reasons during the period 1976-83
eligible for financial assistance.
In order to carry the principle of compensation further, special
legislation such as Act No. 24.043, promulgated on December 23, 1991,
provided for indemnification to persons who were placed at the disposal
of the National Executive, or who, as civilians, suffered detention by
virtue of acts of military tribunals during the state of siege, provided
they had not received indemnification under a previous court order from
the State, payable in six instalments.
The above discussion by no means infers that a single model will fit
all. Each country should adopt its own approach toward reparation based
on cultural and economic constructs. In this context, the author is
impelled to add the last verse of a poem he wrote entitled “The
Soldier”, which goes as follows:
There will always be war
There will always be peace
The trick is to know which is which
The rules are quite clear
You must not ever fear
To stand up to values that are rich.
The writer is Coordinator, Air Transport Programmes, International
Civil Aviation Organisation, Montreal, Canada. |