Programme Coordinator, International Rehabilitation Council for Torture Victims
T his article surveys issues related to the pursuit of reparation by victims of torture or their family members. What is the legal right to reparation, and how successfully has it been implemented in different countries? How does the pursuit of reparation relate to the needs of torture victims themselves, and what will be the likely consequences if it is denied in part or in whole? Are some forms of reparation fundamental for the successful recovery and reintegration of the torture victim, such that the denial of the right will prolong or reinforce the victim’s sense of powerlessness and isolation? As human rights advocates, can we ever permit ourselves to express support for a national process of reconciliation and reparation for victims of torture that does not meet in full those rights guaranteed by international law? The article contends that national authorities committed to implementing the right to reparation should take as a starting point the needs and wishes of victims themselves. The forms of reparation recognised at international law are many and varied. It is unlikely that all victims will find the same form of reparation beneficial or desirable. National authorities should therefore facilitate access to a variety of reparations, including judicial, compensatory, rehabilitative, restitutive, declaratory and commemorative forms.
Even in those societies where reparation schemes are provided for violations committed by former regimes, there can be strong political disincentives to the adoption of a victim-oriented approach. There are many ingrained social prejudices against victims, even in cases where the facts of the violation and the suffering caused are beyond dispute. Before laws or practices can be reformed, it is sometimes necessary to confront attitudes that may exist among legislators or administrators that reflect the prejudices or ignorance of the wider community. This is particularly so in the case of torture, a violation committed in secret and in spite of official denial, and for which many victims continue to suffer in silence. The author is neither a health professional nor a practicing lawyer, but hopes that the presentation of this subject in a multidisciplinary way will inspire new voices, in particular Asian voices, to take up this issue for further discussion.
The international legal framework
The right to reparation for victims of a wrongful act is a well-established principle of international law. [1] This obligation also applies in respect to international human rights and humanitarian law. Since World War Two, the obligation to provide reparation to victims of human rights violations has been reiterated in a large number of treaties and declarations, many of which have by now been ratified by a majority of UN Member States. As regards the crime of torture, the right to reparation is grounded in articles 2.3 & 7 of the International Covenant on Civil and Political Rights, article 39 of the Convention on the Rights of the Child, and in article 14 of the Convention Against Torture (CAT). Article 14 guarantees the right of torture victims to obtain reparation, including redress, fair and adequate compensation and the means for as full rehabilitation as possible. The CAT does not define “redress”, “compensation” or “rehabilitation”; neither does it contain a strict definition of who is considered to be a “victim”. However, two UN documents that have attempted to do so are the Declaration of Basic Principles of Justice for Victims of Crimes and Abuse of Power (the Victims Declaration)— adopted by the UN General Assembly at its 40th session in 1985 (UN GA Res. 40/ 34)— and the UN draft Basic Principles and Guidelines on the Right to a Remedy and Reparation. [2] The Victims Declaration and the draft Basic Principles are indicative of a general trend in human rights reporting over the past 30 years, which has been to move away from treatment of violations as abstract phenomena, towards an increasing emphasis on the subjects (both victims and perpetrators) of the violations. On the one hand is the victim, whose rights have been violated, who continues to suffer the consequences of the wrongful act, and whose right to obtain full reparation should be facilitated by the state. On the other is the perpetrator, who must be brought to justice, in part to afford reparation to the victim, but also to satisfy States Parties’ obligations under the CAT to investigate, prosecute and punish.
The Preamble to the draft Basic Principles notes that by recognizing the right of victims to benefit from remedies and reparation, the international community keeps faith and human solidarity with victims, survivors and future human generations, and reaffirms the international legal principles of accountability, justice and the rule of law. Further, “By adopting a victim-orientated point of departure, the community, at local, national and international levels, affirms its national solidarity and compassion with victims of violations… as well as with humanity at large.”
Mental and psychosocial consequences of torture
Torture, the deliberate infliction of severe pain by one human being against another, leaves particular kinds of mental and psychological scars. Torture victims commonly report feelings of fear, guilt, shame, disillusionment, insecurity and humiliation. [3] These symptoms, either alone or in combination, are also common in other psychological disorders that do not have their origins in violations of human rights. What is unique about torture and other forms of organized violence, however, is that the trauma they induce includes the immoral act of a perpetrator. This moral dimension continues to affect the victims, perpetrators and entire society until steps have been taken to restore justice. [4]
Attitudes towards victims
As discussed, all states are obliged to provide reparation to victims of torture. A precondition for successful reparation is that those responsible for making and interpreting laws and policies within the national administration are empathetic to the rights and needs of victims. Yet there exists in many societies deep-seated prejudices towards the weak or powerless, and this is particularly so in the case of persons who claim to be psychologically damaged and seek compensation or support. [5] Even where structures for reparation have been put into place by the state, the granting of reparation may be compromised by the way in which claims assessors perceive trauma and suffering. Danieli describes pervasive societal reactions to Holocaust survivors after the liberation as comprising obtuseness, indifference, avoidance, repression and denial. [6] The accounts of the survivors were too horrifying for many people to listen to or believe. Victims were faced with the pervasively held myth that they had actively or passively consented to their own suffering or that they had themselves committed crimes in order to survive. As has been the experience of victims in other periods and other regions, they were also told that everyone had suffered, that it was time to forgive and forget and to get on with their lives.[7]
The effect of these attitudes, if unchecked, can be to reinforce victims’ silence and impede healing and reintegration; what Rojas has called ‘frozen mourning’. [8] Many studies have documented the transmission of the psychological effects of torture to the second and even third generation. In such cases we can concur with William Faulkner that, ‘The past is never dead. It’s not even past.’
Reparation as ‘therapy’
A number of commentators believe that the pursuit of reparation has a therapeutic benefit for the victim, in addition— or as a supplement— to more targeted forms of medical or psychosocial treatment and support. Carmichael et al. take the view that seeking reparation is an important part of the rehabilitation process, both for the individual and for the society in which the torture occurred. [9] Health professionals also prefer a holistic approach to rehabilitation, including consideration and treatment of the immediate family of the victim as well as community-based programs targeting the general community. Torture victims come, more often than not, from the most vulnerable groups in society and need outside assistance. Where resources permit, rehabilitation programs offer a variety of services to survivors, both social and legal, with a view to reintegrating the person to the fullest extent possible. It has been said that reparation is both a process and a result. The pursuit of reparation can be empowering for a victim, allowing them to overcome feelings of isolation and pain in a public process closely linked to the disclosure of events and the naming of the guilty. [10]
The question arises as to whether some forms of reparation may be more therapeutically beneficial than others. Several commentators have considered the relative merits of civil and criminal proceedings. Gordon has argued that victims have a more active role in the initiation and resolution of civil proceedings than they would have in a criminal proceeding, and that presenting and negotiating a claim can reinforce many of the elements addressed in a formal rehabilitation process. [11] McFarlane, on the other hand, warns of potential problems in both the civil and criminal justice systems. [12] Many victims perceive legal processes to lack empathy, a problem perhaps most prevalent in civil litigation, where court officials and advocates are unused to dealing with victims of torture or other violent crime.
Roht-Arriaza and Rojas both emphasize that procedures serving to promote truth and justice are essential to successful psychological closure. [13] Traumatised people have an instinctive need to tell their stories and have their experiences validated. Silence and deception are common in countries where torture has taken place; victims typically suffer in silence and their plight is both unknown and unacknowledged by the community. Public truth– telling must be undertaken before real healing can occur. Allan & Allan go further, to say that survivors must be given the opportunity to meet the people who abused them if they wish to do so. [14] This can help to create empathy between survivors and perpetrators, an aspect of restorative justice that may be even more important than the prosecution of perpetrators. However, there is a potential conflict here between the needs and wishes of the individual victim and the (perceived) needs of the society, discussed further below.
Consequences of failure to obtain reparation
Could the unsuccessful pursuit of a remedy leave a person in a worse position, mentally and emotionally, than if they had done nothing? This question arises in particular when seeking judicial or quasi-judicial remedies. In both cases, the victim is likely to be required to recount the violation on a number of occasions, placing them at risk of further trauma. No research appears to have been done on this issue to date. What seems to be important, bearing in mind that all legal processes involve an element of calculated risk, is for helpers, legal advisers or counselors to be particularly responsive to their client’s wishes. Victims of torture or other serious human rights abuses should not be encouraged to pursue a remedy if they no longer wish to do so. The conviction of the helper that the need to obtain (formal) justice is paramount may in fact not conform to the victim’s own needs and wishes. Another area of concern arises when the state refuses to provide the form of reparation sought by the victim. There is very strong support, among both health and legal professionals, for the view that other forms of reparation will be inadequate if the perpetrators of violations are not brought to justice. Sveaass & Lavik believe that to grant amnesty and permit impunity is to perpetuate political violence. [15] In these circumstances the experiences of individual victims are denied or invalidated, and psychological reactions of worthlessness or disempowerment, and even cognitive distortions, may follow. Many others, including Kordan, Rojas and Danieli share this view, which is also in accordance with State Party obligations under all relevant human rights treaties, not least of all the CAT. Van Boven has emphasized that if state authorities fail to investigate the facts and establish criminal responsibility, it may prove impossible for victims or their relatives to seek and receive redress and reparation.
In the case of truth commissions, which primarily serve collective goals of national reconciliation rather than individual goals of redress, the role played by the victim can be particularly problematic. He or she is expected to recount the violation suffered with a view to creating a public record of the event, and while this truth– telling may have a reparative value for many victims, it may also be traumatic. Nevertheless, a small number of dissenting views do exist, both within the health profession and the general human rights community. Allan & Allan believe that the South African Truth and Reconciliation Commission was relatively successful as a therapeutic tool, despite the amnesties granted and the fact that it primarily addressed collective goals rather than individual needs or wishes. [16] Cobban, however, is scathingly critical of the International Criminal Tribunal for Rwanda (ICTR) as a means for delivering justice to victims of the Rwandan genocide. [17] Seven years after its establishment, the ICTR had delivered just nine judgements, despite a staff of over 800 and an annual budget of around US$ 90 million. Even taking into account those prosecutions carried out by Rwandan courts, the number of cases processed each year has been around 1500– 2000; just a fraction of the over 125,000 detained genocide suspects. Cobban believes that the imposition of an exclusively criminal justice solution on the Rwandan people has denied them the benefit of restorative justice that has been used with success in South Africa and Mozambique, elements of which would have been better suited to promoting social stability and long-term reconciliation.
Gaps between national reparation schemes and rights at international law
Can human rights advocates ever express support for reparation schemes that exclude one or more of the elements of reparation guaranteed at international law? Can we afford to endorse the kinds of political compromises that lie behind the establishment of truth commissions or national compensation schemes side by side with de jure or de facto amnesties for perpetrators of torture? These are very difficult questions. On the one hand, we know that impunity will prolong, or in some cases deepen, the mental scars borne by the victim or by members of their families. On the other, would it have been possible to achieve a peaceful democratic transition in South Africa or El Salvador, for instance, if the new governments had instigated a policy of prosecuting all perpetrators, rather than granting amnesties?
Morocco offers an interesting example, in that a means for addressing past repression— including the establishment of an arbitration tribunal to assess reparation claims— was initiated under an ongoing regime. As at June 2002, the tribunal there had already awarded US$ 59 million in compensation to over 800 claimants— victims of arbitrary detention and relatives of disappeared persons. It has been criticized on several grounds: its mandate does not extend to cases of torture; very little information has been made available to relatives about the fate of disappeared persons; and, most significantly, the tribunal is not mandated to investigate or prosecute those responsible for violations. On the contrary, a decree granting a general amnesty to all former violators has been approved, but has not yet entered into force. In their defense, the Moroccan authorities say that what has been achieved in Morocco to date is without precedent in the Arab world, and for that matter, in several European countries with similar histories of political repression, arbitrary detention and use of torture.
One element often overlooked is the right to rehabilitation and reintegration. In those few countries such as Morocco or Bulgaria where reparation schemes have been established for former victims of torture, the emphasis has tended to be on judicial or compensatory procedures, rather than social or medical ones. Rehabilitation and reintegration is often seen as being the responsibility of civil society organizations, or alternatively, an issue that can be addressed by the existing public health system without any specific state involvement. Yet in order for the right to rehabilitation to be realistic there has to be a corresponding duty on the state to ensure that the necessary knowledge and facilities are present in the country. To this end, states should be urged to promote acquisition of the appropriate knowledge and skills within the relevant legal, medical, psychological and social professions, and to support the establishment of treatment facilities and services.
Conclusion
Despite a plethora of international standards on reparation, the needs and wishes of the victim continue to be treated with secondary importance by many national authorities. Truth commissions primarily seek to address collective goals rather than to respond to individual needs. Even reparation programs, where established, have been limited in their scope, preferring to balance a complex set of economic, social and political considerations. Looking at a variety of countries in which governments have attempted to address past repression and provide reparation to victims of torture and members of their families, it seems that there is an unavoidable tension between political considerations and the requirements of international law.
More thought needs to be given to ways in which criminal and restorative justice can be combined without compromising the right of victims to reparations. There is potential for enhanced dialogue between health and legal professionals, human rights advocates, and victims’ support groups, drawn together by the common conviction that the perspective of the victim is paramount.
End Notes
1 Chorzow Factory Case (Germany v Poland), 1928, PCIJ, ser. A, no. 17, p. 47. [Back to content]
2 The full title of this document is the draft Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law. The current draft text of the Guidelines is located in the final report of the Special Rapporteur, Professor M Cherif Bassiouni, to the 56th session of the UN Commission on Human Rights, E/ CN. 4/ 2000/ 62. [Back to content]
3 Libby T Arcel et al., ‘Reparation for victims of torture: Some definitions and questions’, Torture, vol. 10, no. 3, 2000, pp. 89– 91. [Back to content]
4 Nora Sveaass & Nils Johan Lavik, ‘Psychological aspects of human rights violations: The importance of justice and reconciliation’, Nordic Journal of International Law, vol. 69, no. 1, 2000, pp. 35-52. [Back to content]
5 Alexander McFarlane, ‘Attitudes to victims: Issues for medicine, the law and society’, in International Victimology: Selected Papers from the 8th International Symposium, Chris Sumner et al. (eds), Australian Institute of Criminology, Canberra, 1996, pp. 259– 75. [Back to content]
6 Yael Danieli, ‘Preliminary reflections from a psychological perspective’, in Seminar on the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms, Theo van Boven et. al (eds), SIM Special No. 12, Utrecht University, Utrecht, 1992, pp. 196– 213. [Back to content]
7 For instance, subsequent to the military dictatorship in Argentina. Diana Kordon, ‘Impunity’s psychological effects: Its ethical consequences’, Journal of Medical Ethics, vol. 17, supplement, 1991, pp. 29-32. [Back to content]
8 Paz Rojas Baeza, ‘Mental health disturbances caused by the absence of truth and justice’, paper delivered at the 7th International Conference for Health and Human Rights, organised by the International Society for Health and Human Rights, Cavtat, Croatia, 2001. [Back to content]
9 Keith Carmichael, Fiona McKay & Bill Dishington, ‘The need for REDRESS: Why seek a remedy? Reparation as rehabilitation’, Torture, vol. 6, no. 1, 1996, pp. 7-9 [Back to content]
10 For a discussion, see Nora Sveaass, ‘The psychological effects of impunity’, in ‘Pain and survival’: Human rights violations and health, N J Navik et al. (eds), Scandinavian University Press, Oslo, 1994, pp. 211-20. [Back to content]
11 Neve Gordon, ‘Compensation suits as an instrument in the rehabilitation of tortured people’, in Torture: Human rights, medical ethics and the case of Israel, Neve Gordon & Ruchama Marton (eds), Zed Books, London, 1995. [Back to content]
12 McFarlane, ‘Attitudes to victims’. [Back to content]
13 Naomi Roht-Arriaza (ed.), Impunity and human rights in international law and practice, Oxford University Press, New York, 1995. Rojas, ‘Mental health disturbances caused by the absence of truth and justice’. [Back to content]
14 Alfred Allan & Marietjie M. Allan, ‘The South African Truth and Reconciliation Commission as a therapeutic tool’, Behavioral Sciences and the Law, vol. 18, no. 4, 2000, pp. 459– 77. [Back to content]
15 Sveaass & Lavik, ‘Psychological aspects of human rights violations’. [Back to content]
16 Allan & Allan, ‘The South African Truth and Reconciliation Commission as a therapeutic tool’. [Back to content]
17 Helena Cobban, ‘The legacies of collective violence: The Rwandan genocide and the limits of the law’, Boston Review, April/ May 2002, [http:// bostonreview. mit. edu/ BR27.2/ cobban. html]. See also a response to Cobban’s article, Kenneth Roth and Alison DesForges, ‘Justice or therapy? ‘, Human Rights Watch Editorials, [http://www.hrw.org/editorials/2002/ictr0724.htm]; and, Helena Cobban, ‘Helena Cobban replies’, Boston Review, Summer 2002, [http://bostonreview.mit.edu/BR27.3/cobbanreplies.html]. [Back to content]
