The Right to Reparation in International Human Rights Law

             This post is a summary of the article with the incomplete title above published at   https://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=1191&context=bjil

              The evolution of international law towards a system capable of promoting "global justice" has been accompanied by a growing consensus that states bear an obligation both to punish wrongdoers and to act on behalf of victims in the wake of systematic human rights abuses. In fact, U.N. General Assembly Resolution 60/147, set forth "existing," complementary international legal obligations of states in this arena without introducing new obligations. The right to a remedy is premised on three core rights: 1) the right to "equal and effective access to justice"; 2) "the right to adequate, effective and prompt reparation for the harm suffered"; 3) "the right to truth." It is important to recognize the two different ways in which the term "reparations" is used. Within the context of international law, the term connotes the array of measures available to redress the different harms that a victim may have suffered due to certain crimes. Therefore, under international law, reparations may include restitution, compensation, rehabilitation, and guarantees of nonrecurrence. Such measures, which include material and moral undertakings by a society in individual or collective form, seek to restore the victim to the status quo ante by expressing a society's "recognition, remorse and atonement for harms inflicted." Material reparations may include monetary compensation, service packages providing healthcare or counseling to promote rehabilitation, restoration of property rights, or a pension. Moral reparations focus on allowing the victim's story to be told and promoting a sense of justice, and may include official apologies, rehabilitation, and the creation of memorials or other acts of remembrance. The existing international legal framework for reparations to victims of human rights violations is inadequate as evidenced by the current situation in Bahrain. At least in the short term, legal recognition of a victim's right to reparations without an effective enforcement mechanism at the international level ultimately perpetuates the cycle of victimization for those whom the pronouncement of such principles seeks to protect. The implementation of a "comprehensive and coherent reparations program" is ultimately in the best legal, moral, and political interests of any regime. National courts are supposed to serve as the gateway for victims seeking reparations for violations of human rights.In fact, an individual lacks standing to even bring a claim before most international bodies until he or she has exhausted available domestic remedies. However, experiences has repeatedly proven the ineffectiveness of relying on national courts for such a purpose because the courts are "almost always... inoperative" during the conflict periods in which systematic human rights violations usually occur, and because "it takes quite some time for courts to assume an independent stance capable of finding powerful forces ( usually the government itself ) liable for violations. As a result, many victims of human rights violations have had more success pursuing their claims in foreign courts. The universality principle recognizes that certain crimes are so reprehensible that any nation may act on behalf of the international community to prosecute and punish those responsible, regardless of where the crimes were committed. A national court may thus exercise universal jurisdiction only over those crimes regarded as serious violations of international law.  Reparations, by their very nature, require the state to acknowledge its wrongful conduct by recognizing and compensating the victims. Some governments has proved tremendously reluctant to acknowledge and accept responsibility. Instead, it has offered only blanket condemnation for the "situation" combined with limited progress. Such reluctance is undoubtedly tied to the fact that "programs of reparation are part of a more general human rights agenda". Therefore, any program of reparations in Bahrain is inextricably tied to the access and exercise of power. This connection helps to explain the reticence exhibited by the Bahraini political elite in addressing the past and why the ruling regime has taken only carefully calculated measures designed to ease pressure without producing any fundamental changes to the power structure and its hold on power. Both the story of victim's rights under international law and the story of Bahrain's transitional justice experience are far from written. Efforts to close the gap between the rhetoric of human rights and the enforcement of such rights must remain a top priority. U.N. General Assembly's adoption of the 2006 Basic Principles marks an important step in the evolution of human rights law towards a more "victimcentric" framework, but the doctrine must be translated into action in order to protect "the inherent dignity... of all members of the human family" on which freedom, justice and peace in the world is based. In Bahrain, recent human rights developments serve as a reminder that there are many obstacles to overcome in guaranteeing respect for essential human rights at the domestic level. Nevertheless, there are also positive signs that some degree of justice may be forthcoming for Bahrain victims of state abuse. In 2007, eleven Bahraini human rights organizations took the unprecedented step of forming a reconciliation group to lobby the government for the creation of a truth and reconciliation committee to address human rights abuses committed by the government.