Blog: Reparations by Non-State Armed Groups

Reparations are measures to acknowledge and remedy the harm caused to victims by a responsible actor. International law and state practice in transitional societies, places the responsibility on the state to deliver reparations, but there is increasing recognition that non-state armed groups should also provide reparations. To some people it may seem morally jarring to seek or encourage non-state armed groups to make reparations, when they engage in violence against civilians or are viewed as terrorists or criminal gangs. Yet international law obligates states to do this, despite the scale of violence for which they can be responsible. This is not to suggest that a similar legal framework for reparations built around state responsibility should be mirrored for non-state armed groups, as they will often lack the capacity, resources or political will to mobilise their supporters. Instead responsibility for delivering reparations to all victims in a conflict rests with the state, which even with violence committed by private actors, has obligations to ensure all victims of violence can access redress. There is increasing practice that in certain circumstances non-state armed groups can have obligations under international law.

As part of an AHRC funded project, we have been exploring how non-state armed groups contribute to reparations across seven contexts and engaging with 18 groups. Our research and engagement with such groups have focused more on the organic practice of redress by non-state armed groups during and post-conflict, rather than just the law itself. Through our research we have been exploring the role of non-state armed groups making reparations to those civilians they victimise, those who suffer violations within their own organisation and to other non-state armed groups. This blog outlines some of these practices of redress, linkages with reintegration, and reparations for victimised ex-combatants, to encourage a wider debate on these issues. At the outset while we refer to combatant, this is not alluding to their status under international humanitarian law, but how they refer to themselves.

Reparations during and post-conflict

Providing reparations during conflict is complicated by violence and insecurity, but non-state armed groups often engage in reparative practices to mitigate hostility from civilians and supportive communities. This can take the form of land restitution, compensation, provision of basic medical care or transport for those injured, or acknowledgements of responsibility and apologies. Many armed groups do not have the financial resources to provide compensation when civilians are killed during conflict, so some instead make acknowledgements of responsibility and even apologies to the families to “explain mistakes and get closer to the civilian population” as one former MRTA commander in Peru explained. Other groups following local cultural practices left a token amount of compensation as “blood money” on killed informants or civilians to avoid or at least minimise retaliation from the victim’s family. Clearly during times of conflict there are skewed power relation dynamics between armed groups and civilians. Research indicates though the dynamics between civilians and non-state armed groups is more complicated than between those who have guns and those who do not, to reflect the agency and organised resistance of civilians can cause non-state armed groups to seek dialogue and compromise, rather than violence, to mediate disputes.

In post-conflict transitions, non-state armed groups may be defeated, imprisoned, demobilised or splintered into dissident groups that prevent them from collectively engaging in transitional justice processes. In other contexts such groups may now be political representatives or in a power-sharing government, such as the ANC, Sinn Fein or the Communist Party of Nepal. Having the political wing of an armed group in power does not necessarily mean they will promote a transitional justice agenda, as some may frustrate it. However, some do continue the struggle for social transformation through such processes, such as historical grievances or victims within their own political community. Beyond this there can also be political gestures aimed at reconciliation by such actors, such as the public apologies by FARC, former IRA members assisting in the recovery of the disappeared or members of MRTAcontributing to the Peruvian truth commission. This can go beyond the organisational contribution to also include individual members’ role in making reparations, such as the alternative sanction suggested in the Colombian Special Jurisdiction for Peace (JEP).

Reparations and reintegration

Non-state armed groups members are not always perpetrators, some groups do comply with the Geneva Conventions. Yet upon demobilising, ex-combatants can face a number of barriers to their reintegration. Disarmament, Demobilisation and Reintegration programmes are intended to facilitate combatants’ transition into civilian life, but are often disconnected from transitional justice processes or unable to address their victimisation. Combatants can often be stigmatised when returning to civilian life, this can include threats to their life and their family. 139 ex-FARC combatants have been killed since demobilising after the 2016 peace agreement. Others can face barriers to accessing jobs or social services, due to their criminal convictions or discrimination.

Reparations by non-state armed groups can be a way to minimise such stigma and help the normalisation of combatant resocialisation by demonstrating they are trying to make good the harm they have caused in the past. The difficulty of reparations by non-state armed groups, and individual combatants in particular, is that it can be a double-edged sword. On the one hand where it is imposed as part of a sentence it can be seen as a form of retribution beyond prison, to affect a person and their family after their release. One MRTA commander in Peru spoke about how after serving nearly thirty years in prison he is now paying off his reparation order in $30 USD a month installments, which initially was $15,000, but now with interest is $300,000, making it impossible for him to pay it off. His family have also had property seized and anything he earns is subject to a judicial order of confiscation. This money does not go to the victims of his group, but to the state, who has already indemnified victims under the national reparation programme. Similar practices in the Basque country and Colombia have been noted by other groups we have engaged with, who are now wary of speaking or engaging with victims on reparations. These reparation orders are similar to the International Criminal Court, where liability has been established against those convicted before the Court. As raised in the Al Mahdi case there is no indication when such liability should end, but the Court is keen to avoid imposing hardships that would prevent perpetrators’ reintegration into society upon release. In the Bemba case, the defendant had substantial assets that were frozen, but because they were not properly managed they were left to rot or incur large parking bills, such as his jet airplane in Faro. Other groups in Northern Ireland, Colombia and Nepal we spoke to were apprehensive about transitional justice in general, having seen the political discourse change since the peace agreement from reconciliation to a more retributive search for prosecution of combatants, many of whom are now in their old age. This is having mental health impact on such ex-combatants, who like victims do not have long-term access to psychological support.

On the other hand, where combatants are incentivised through reduced sentences or other benefits, reparations by ex-combatants can serve to recover information on the location of the remains of disappeared victims, transfer of assets, details and motivations of violence, and more symbolic measures of acknowledgment of responsibility and apologies to victims. One group in Lebanon we spoke to is actively involved in engaging marginalised youths from being radicalised or joining other armed groups, thereby in a way contributing to guarantees of non-repetition of violence. There are difficulties fraught in each of these approaches. The experience of transitional justice has been that such processes need to be carefully crafted to protect the interests and rights of all involved, in particular victims. Nevertheless countries like Colombia and its Special Jurisdiction for Peace alongside its truth commission and body for the recovery of the disappeared are trying to encourage FARC to make such reparations, which through the alternative sanction regime is increasingly taking the form of community work and symbolic reparations, with material reparations mainly provided through the government’s Victims Unit.

Reparations for ex-combatants

A thornier issue is the victimisation of ex-combatants and whether they should be eligible for reparations. Combatants may not want to see themselves as victims when they suffer violations during combat; there is a growing literature around notions of honour, loyalty and masculinity to explain this. Nevertheless reparation policies often face the contentious issue of whether or not combatants should be included so as to avoid moral equivalence with those they victimised. In Peru and Colombia combatants who are victimised, such as suffering torture, sexual violence or being forcibly recruited as a child but demobilised as an adult, are excluded from reparations. This is problematic when reparations are intended to remedy and acknowledge violations, and reconstitute values of the rule of law, equality and human rights. Including such victimised combatants is not to detract from these individuals’ responsibility for victimising others, but to appreciate being a victim and a combatant are not black and white. People have complex conflict experiences that do not necessarily fit into neat boxes. Indeed disarmament, demobilisation, and reintegration programmes may not be set up to provide the services needed to victimised combatants, such as those who suffer from forced abortions in the FARC. As such, we need to think more broadly than reparations being the sole role of the state and victims only being civilians Non-state armed groups can play an important role in transitioning society from conflict, continuing to punish them may miss an opportunity to remedy some of the wrongs of the past.

This blog originally appeared on Armed Groups and International Law.