Reparative approach Towards victims of armed Con?ict: global experiences and lessons for india

• Author: B. Sonowal - D. Dube
• Position: Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology (Kharagpur, India)
• Pages: 127-158

BRICS LAW JOURNAL Volume VI (2019) Issue 1

COMMENTS

REPARATIVE APPROACH TOWARDS VICTIMS OF ARMED CONFLICT:

GLOBAL EXPERIENCES AND LESSONS FOR INDIA

BHABANI SONOWAL,

Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology

(Kharagpur, India)

DIPA DUBE,

Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology

(Kharagpur, India)

DOI: 10.21684/2412-2343-2018-6-1-127-158

In recent years, relentless eorts have been made worldwide for repairing the past harms

done to victims of armed conict. There has been a paradigm shift in international

human rights law to addressing the victims’ need for reparation rather than emphasizing

punishment for the perpetrators. A rights-based approach has been adopted towards

making amends for the harm caused to victims in the past. Reparation is such a rights-

based approach, a diverse complementary form of justice to restore the life of the

victims/survivors by means of restitution, compensation, rehabilitation, satisfaction and

guarantee of non-recurrence of the violations upon the victims. Eective and inclusive

response to violations during armed conict and addressing those wrongs by way of

reparation has become a priority within the international community to sustain peace

and development in conict-ridden countries. India, over the last few decades, has faced

persistent violence perpetrated through armed conict in regions such as Jammu and

Kashmir as well as the North East. The lives of common people have been unsettled

as a result of incessant killings, rapes and other brutalities. This article explores the

development of reparation in the regime of international law and its implication for the

victims of armed conict. It underlines the initiatives of countries emerging from armed

conict in addressing the plight of victims by means of a reparative approach and argues

that India needs to adopt a framework to reach out to those whose lives have been

destroyed as the result of such violence and provide necessary reparation to them.

BRICS LAW JOURNAL Volume VI (2019) Issue 1 128

Keywords: armed conict; reparation; human rights violations; victims; international law.

Recommended citation: Bhabani Sonowal & Dipa Dube, Reparative Approach

Towards Victims of Armed Conict: Global Experiences and Lessons for India, 6(1) BRICS

Law Journal 127–158 (2019).

Introduction

Reparation is a right-based comprehensive approach, a diverse complementary

form of justice to restore the lives of victims/survivors of violence. The concept of

reparative justice is based on the premise that a crime represents a debt owed not

only to the state but the victim, the victim’s family and the community as a whole.1

Reparations are owed when (a) one party, the “perpetrator,” has wronged another

party, the “victim,” (b) the perpetrator has thereby harmed the victim, and (c) the

perpetrator now can do something to compensate for the crime.2 In a ll its forms,

reparative activity attempts to undo the moral, psychological, material and relational

damage made by wrongdoing.3

Reparation is thought to be “the physical embodiment of a society’s recognition

of, and remorse and atonement for harms inicted.”4 It is about making amends for

damage: it is a mechanism to acknowledge and compensate victims for the harm

suered and the rights violated.5 Reparation, in a broader sense, in the context of

international law, refers to all means that could be employed to remedy the various

harms that are inicted upon victims as a consequence of crimes.6

The establishment of the United Nations in response to the “untold sorrow to

mankind” brought about during World War II and the adoption of various international

instruments laid the basis for a right to remedy and reparation for gross violations of

human rights. The international tools where the glimpse of the right to reparation is

reected since the inception of the United Nations are Ar ticle 91 of the Additional

Protocol I to the Geneva Convention, 1949, Article 3 of the IV Hague Convention,

1 Dipa Dube & Bhagwan R. Gawali, Reparative Justice for Rape Victims in India, 1(3) International Journal

of Advanced Research in Management and Social Sciences 257 (2012).

2 Michael Ridge, Giving the Dead Their Due, 114(1) Ethics 38 (2003).

3 Rhoda E. Howard-Hassmann & Anthony P. Lombardo, Framing Reparations Claims: Dierences Between

the African and Jewish Social Movements for Reparations, 50(1) African Studies Review 27 (2007).

4 Eric Stover & Harvey M. Weinstein, My Neighbor, My Enemy: Justice and Community in the Aftermath of

Mass Atrocity (New York: Cambridge University Press, 2004).

5 Navsharan Singh, Thinking Reparations in the Context of Impunity in Landscapes of Fear: Understanding

Impunity in India 300, 301 (P. Hoening & N. Singh (eds.), New Delhi: Zubaan, 2014).

6 See the papers in State Responsibility and the Individual: Reparation in Instances of Grave Violation of

Human Rights (A. Randelzhofer & C. Tomuschat (eds.), The Hague: Martinus Nijho Publishers, 1999).

BHABANI SONOWAL, DIPA DUBE 129

1907, Article 8 of the Universal Declaration of Human Rights (UDHR), 1948, Article 2,

clause 3 of the International Covenant on Civil and Political Rights (ICCPR), 1966,

Article 6 of the International Convention on the Elimination of All Forms of R acial

Discrimination, 1965, Article 14 of the United Nations Convention against Torture and

other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against

Torture), 1984, Article 39 of the Convention on the Rights of the Child, 1989, Article

24(4) of the International Convention for the Protection of All Persons from Enforced

Disappearance (ICPPED), 2010 and Article 75(1) of the Rome Statute, 1998. However,

for international legal practitioners the challenge remained as to who would fall

under the category of vic tims and what types of violations might be redressed by

reparation.

This led to the adoption of the U.N. Declaration of Basic Principles of Justice for

Victims of Crime and Abuse of Power, 1985 which meticulously dened the universally

accepted term of “victims.” Further, 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, 2005 comprehensively

interpreted the term “reparation” to constitute rehabilitation, restitution, compensation,

satisfaction and guarantees of non-repetition within its ambit.

A number of nations across the globe emerging from armed conic ts7 have

adopted the reparative approach to redress the claims of victims. South Africa,

Cambodia, Guatemala, Colombia and others bear evidence of reparative measures

undertaken within the legal regime to eectively respond to victims’ needs. India,

with its long-standing history of conict in the Kashmir valley and terrains of the

North Eastern Region, and the resulting violations of rights and loss of life, has failed

to adopt any comprehensive framework for the reparation of victims. The criminal

justice system provides several mechanism for compensation and rehabilitation for

victims, but the law fails in its reach. The identication of victims of ar med conict

as well as the nature of harms perpetrated tends to create an ambivalence whereby

redress of victims’ rights remains a distant dream. Specic instances of interventions

by the executive or judiciary have been noted, but no holistic or comprehensive plan

has been developed over the years.

The present paper sifts through the global initiatives in reparation of victims

of armed conict by highlighting the dierent reparative measures adopted by

countries emerging from armed conflict and argues that India needs to take

appropriate steps in this direction.

7 Here, and throughout this paper, the terms “armed conict” and “conict” exclusively refer to internal

armed conict, i.e. where the conict is between the State and rebel forces, and, as such, is not of an

international character.