Reparations are often touted as victim focused measures of redressing transitional justice and human rights. However, identifying which victims are eligible for reparations goes to heart of debates about the legitimacy of the violence and who deserves a remedy. Some individuals are perceived as more innocent and deserving than others as part of contested narratives over the past.
This is particularly acute for those with ties to terrorist or non-state armed groups who are often denied from claiming reparations, even if they have suffered serious harm. However, the difference between victims and perpetrators in protracted conflicts can at times be indistinct. This article analyses conceptions of victimhood and explores some solutions states implement to deal with victimised perpetrators. Victimised perpetrators are those individuals that, while being members of state or non-state armed groups responsible for unlawful violence, are subjected to illegal victimisation, such as torture, sexual violence or extrajudicial execution. Despite growing recognition of the need for reparations for serious human rights violations, many states deny redress to certain groups of individuals no matter the extent of their suffering. Alongside them, there are states that resort to a more complex approach which include victimised perpetrators in reparations programmes. Examining some recent cases before the European and Inter-American Courts of Human Rights on reparations for victimised-terrorist members, it is clear that there is no consistent state practice or human rights jurisprudence governing redressing victimhood. This piece argues that despite the contested and complex victimhood in transitional societies, an objective approach to acknowledging and remedying those who are victimised, whether combatants or civilians, can better reaffirm the wrongfulness of such violence.
How do transitional societies address victimised perpetrators?
Post-conflict societies take different approaches to victimised perpetrators depending on the prevailing narrative of the conflict and its reconciliation efforts. In countries like Sierra Leone, Kosovo, Tunisia or Timor Leste, victimised perpetrators are eligible for reparations. This is because the main goal of these states is to remedy the most serious violations no matter the background of the individual. In general, more vulnerable members of armed groups, such as child soldiers and those sexually enslaved, are accepted as eligible victims for reparations. For instance, in Colombia, the 2011 restitution of land law stipulates that members of illegal armed groups can be considered victims when they are children or adolescents who were demobilised while they were under 18 years old. However, measures that promote demobilization may have the paradoxical effect of prioritising some groups of victims over others, which in turn has the potential to cause resentment. In interviews I conducted in Uganda in 2011 as part of my PhD research, one victim told me that while those abducted and enlisted by the Lord’s Resistance Army are able to avail of a demobilisation package, there remain no reparations for civilian victims; he summed up his feeling in one sentence, “I am a victim, but I do not have the benefits of a perpetrator who is also a victim”.
This dichotomy between demobilisation and reparations—which are often recommended, but rarely implemented—is part of a wider trend in countries where contested narratives of the past still play out in the law and who is eligible for reparations. This is apparent in South Africa where a separate Pension Fund was created for state and non-state armed groups, with reparations for civilians on the back of recommendations from the Truth and Reconciliation Commission.
This dichotomy can also serve to further one narrative over another; by allowing State forces to benefit from reparations, it can reinforce their claim of innocence in atrocities. In Colombia and Peru, state forces are eligible for reparations—despite being implicated in atrocities—while members of non-state armed groups face various obstacles in their way to reparations. In Colombia, family members of individuals who belong(ed) to non-state armed groups are recognised as victims when this person is killed, but not if they are injured. Similarly the Peruvian truth commission recognised the harm suffered by members of non-state armed groups, such as the Shining Path or Túpac Amaru Revolutionary Army (MRTA), but held that they were ‘victims, but not beneficiaries’ of reparations. Accordingly, the Peruvian reparations law explicitly excludes members of ‘subversive groups’ from reparations. However, victimised perpetrators who cannot benefit from individual compensation awards can avail of collective measures aimed at community restoration, including education and health rehabilitation.
Similarly, Iraq’s 2009 compensation law excluded those individuals convicted of terrorism offences. Spain also excludes members of terrorist groups from reparations. In contrast, in Basque and Navarre, reparations laws do not explicitly exclude members of terrorist groups. In Northern Ireland, the 2009 Consultative Group on the Past suggested reparations for victimised perpetrators. Under this proposition, families of killed paramilitary members would receive a £12,000 recognition payment, which is the same as that which families of murdered civilians receive. However, the proposal was met by protests and media derision and the outcry resulted in the 30 recommendations being shelved.
Grappling with victimhood and responsibility in human rights courts
Despite human rights courts like the Inter-American Court of Human Rights solidifying individual’s right to reparations, courts have grappled with victimised perpetrators in balancing the victimisation by the state against their responsibility in victimising others. In cases involving detention of terrorist suspects, the European and Inter-American Courts of Human Rights have recognised these individuals’ right to reparation. However, in a case of counter-terrorism operations involving bombings, the European Court has denied reparations to victimised perpetrators, despite suffering from extrajudicial executions.
Recently the Inter-American Court of Human Rights has been reducing the amount of compensation, i.e. money awards, and limiting the forms of reparations for victimised perpetrators. In Palace of Justice v Colombia, the family of one of the hostage-takers who was disappeared by the Colombian army was only awarded USD $5,000, despite the families of civilians who were similarly disappeared given USD $100,000-$150,000. In a subsequent case involving the hostage crisis in the Japanese embassy in Peru, the family of one of the hostage-takers who was extrajudicially executed by Peruvian special forces was only awarded psychological rehabilitation, such as counselling. Despite the growing recognition of reparations for serious violations of human rights, there is a political push back by states that is being slowly reflected in regional human rights courts to limit or deny (former) members of terrorist organisations from claiming reparations.
This rollback on the right to remedy and reparations for serious human rights and humanitarian law violations such as torture, sexual violence, and extrajudicial executions should be condemned; victims of human right violations, no matter their background, should be acknowledged and able to seek redress. This is not to absolve victimised perpetrators from their responsibility in victimising others. A qualified inclusion in the reparations process—with appropriate forms or amount of compensatory measures—would seek to ensure that those victimised perpetrators are not denied redress or victimhood, which may cause further victimisation and legitimisation of violence, while at the same time reflecting their responsibility in the amount of reparations they deserve.
Finding a way forward for victimised perpetrators
The way to ground different approaches towards victimised perpetrators in more universal principles of international law is to ensure that anyone who has suffered a serious violation has access to appropriate reparations. As a starting point, states must recognise and remedy those who have suffered harm by reaffirming the rule of law so that no one is subject to torture, serious injury, sexual violence or extrajudicial executions, no matter their background. However, what forms of redress victimised perpetrators receive can be tempered by their responsibility in causing suffering to others. As such, victimised perpetrators could be eligible for reparations via rehabilitation instead of compensation. In terms of fairness, state forces responsible for causing violations should be treated the same as victimised perpetrators from non-state armed groups.
Another mechanism is to deal with this group of individuals through a review panel that balances their responsibility for victimising others against their own victimisation, awarding them compensation that can still acknowledge and alleviate their continuing suffering while not discounting their role in causing suffering to others. A review panel would only examine the amount of reparations for victimised perpetrators, whereas civilian victims would receive reparations without such an assessment of their responsibility. If reparations are to have meaning as transitional justice tools they cannot be used to replicate and perpetuate the contested narratives of the conflict, but need to rebuild a shared understanding of violations committed by different actors and more complex understandings of victimised perpetrators. Only through recognising that certain violations are wrongful, no matter the background or responsibility of an individual, can the rule of law and the dignity of all human beings be secured in a future peaceful society.