It
is a widely acknowledged principle of international law that any breach of an
engagement involves an obligation to make reparation in an adequate form.[1] Thus
when a violation is committed, reparations must be paid[2]. The
term reparations can therefore be simply understood as redress provided for
victims for the injury or harm that they have suffered. This principle applies
in two instances; where the violation is committed by one state against
another, or by a state against individuals.
Reparations
aims to ‘wipe out [as far as possible] all the consequences of [an] illegal act
and re-establish the situation which would, in all probability, have existed if
that act had not been committed’[3]. Importantly, reparations are not restricted
to compensation. The 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 “UN Principles
on the Right to a Remedy”) distinguishes five broad categories of reparations
which are;
•
Restitution
•
Compensation
•
Rehabilitation
•
Satisfaction
•
Guarantees of
non-repetition
The
right to reparations includes access to justice, reparation for the harm
suffered and access to information[4]. It
is contained in most human rights and humanitarian rights conventions. In the
context of serious violations of international human rights law and
international humanitarian law, the UN Principles on the Right to a Remedy
provides fundamental principles and guidelines and a framework for construction
of national reparation programmes. The importance of remedies has also been
affirmed in the International Covenant on Civil and Political Rights and in
other instruments.
Gender and Reparations
Generally,
women and girls suffer distinct injuries and human rights violations, thus the
need to deal with these violations uniquely. A Statement by Rashida Manjoo[5],
the Special Rapporteur on violence against women, its causes and consequences[6]
provides an account of the distinctive nature of violations suffered by women.
It says that;
“Women and girls are victimized under
authoritarian regimes and during violent conflict in multiple ways. They suffer
from operations randomly or strategically targeting and terrorizing the
civilian population, but also from summary and extrajudicial executions,
imprisonment, torture, rape and sexual mutilations for fighting in resistance
movements, engaging in the search for and defence of their loved ones or for
coming from communities suspected of collaboration. […]Some forms of violence
that women are subject to are similar to those suffered by men; others are more
specific to women and girls, subjecting them to systematic patterns of sexual
or reproductive violence or to different forms of domestic enslavement […]More
importantly, even when women are subjected to the same violations as men, their
pre-existing socio- economic and legal status and the cultural meanings
surrounding the construction of the male and the female in patriarchal
societies may cause different ensuing harms for men and women”.
For
a long time, women and girls have been subjected to sexual and gender based
violence without the hope of any form of redress or reparation. But the need
for reparation programmes specifically dealing with violations against women
cannot be gainsaid. Until recently, there has been no emphasis on gender and
reparations and on the distinctive role on reparations for women. However, in
its 1993 Declaration on the Elimination of Violence against Women, the General
Assembly requested States to ‘exercise due diligence to prevent, investigate
and in accordance with national legislation punish acts of violence against
women whether those actions are perpetrated by the State or private persons[7].’ It
also called for states to develop legislation aimed to punish and redress
wrongs caused to women.
The
Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation
adopted in 2007 is the best manifestation of the growing concern to provide
women and girls with adequate reparations. In its preamble it takes into
consideration ‘the unimaginable brutality of crimes and violations committed
against women and girls in conflict situations, and the disproportionate effects
of these crimes and violations on women and girls, their families and their
communities. The Declaration seeks to;
·
Empower women and girls
·
Promote gender equality
and post-conflict transformation through reparations by shaping the lives of
women and girls.
·
Highlight the
particular circumstances of violation of women’s rights and the specific
approaches based on their needs.
·
Advocate for the full
participation of women and girls victims in every stage of the reparations
process.
·
Emphasize the
importance of truth telling in order to positively reparation measures and to
help women and girls to rebuild their lives.
In
addition, the Declaration pays specific attention to victims of sexual and
gender based violence.
Asides
from the Nairobi Declaration, the recent reparation order by the International
Criminal Court in The Prosecutor v. Thomas Lubanga Dyilo case
provides a watershed in women reparations. Some of the principles established
by the trial chamber provide important ideologies in the gender -reparations
discourse. The chamber emphasized that reparations should be accessible to all
victims and where appropriate takes the gender of the victims into account. In
addition, it stressed that reparation measures should take into account sexual
and gender based violence that victims may have suffered[8]. In
welcoming this order, the UN Women’s Deputy Executive Director, Lakshmi Puri, said
that “As a mechanism of justice, reparations are of particular importance for
women victims of conflict,” and that “[r]eparations have the potential to
provide recognition of women’s rights as equal citizens, acknowledgement of the
harm suffered, as well as a concrete contribution towards victim’s recovery,” Consequently,
reparations play an important role in rebuilding lives of victims.
These
approaches play a significant role in allowing women victims to access justice.
States therefore as the primary entities vested with the responsibility to
provide reparations should ensure that the needs of women are met in any
reparation measures. This can be done either through enactment of gender
sensitive reparation policies or through inclusion of gender/
non-discriminatory clauses in constitutive instruments of Truth Commissions
which usually recommend reparations in their final reports.
[1] Permanent Court of Arbitration, Chorzow Factory Case (Ger. V.
Pol.), (1928) P.C.I.J., Sr. A, No.17 at 29.
[2] Chorzow Factory Case (n 1 above) at 21.
[3] Chrorzow Factory Case (n 1 above) at 47.
[4] Principle 11, UN Principles on the Right to a Remedy.
[5] On the 65th session of the General Assembly Third Committee on 11
October 2010 at New York.
[6] Available at http://www.un.org/womenwatch/daw/documents/ga65/vaw.pdf
(accessed on 28/08/2012)
[7] Article 4(c) of the Declaration.
[8] Cited in http://www.vrwg.org/home/home/post/36-lubanga-case---q--a-on-icc-landmark-decision-on-reparations-for-victims
(accessed on 28/08/2012).
By Brenda Mwale
No comments:
Post a Comment