Reparations for Victims of Genocide, War Crimes and Crimes against Humanity PDF
Preview Reparations for Victims of Genocide, War Crimes and Crimes against Humanity
Reparations for Victims of Genocide, War Crimes and Crimes against Humanity Reparations for Victims of Genocide, War Crimes and Crimes against Humanity Systems in Place and Systems in the Making Edited by Carla Ferstman Mariana Goetz Alan Stephens LEIDEN • BOSTON 2009 Cover photo credit: Africaserver Foundation (2002). Photograph of “Statue of Justice”, sculpture by Kofi Setordji, as part of Th e Genocide Monument. http://www.vmcaa.nl/genocide/. Th is book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Reparations for victims of genocide, war crimes and crimes against humanity : systems in place and systems in the making / edited by Carla Ferstman, Mariana Goetz, Alan Stephens. p. cm. Includes index. ISBN 978-90-04-17449-8 (hardback : alk. paper) 1. Genocide--Economic aspects-- Congresses. 2. War reparations--Congresses. 3. Reparations for historical injustices-- Congresses. I. Goetz, Mariana. II. Ferstman, Carla, 1968- III. Stephens, Alan. K5302.A6R47 2009 363.34’988--dc22 2009008040 ISBN 978 90 04 17449 8 Copyright 2009 by Koninklijke Brill NV, Leiden, Th e Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, p hotocopying, record- ing or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to Th e Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. printed in the netherlands Contents Foreword Judge Elizabeth Odio-Benito ........................................................................1 Introductory Remarks Clemens N. Nathan .....................................................................................5 Introduction Carla Ferstman, Mariana Goetz and Alan Stephens ......................................7 Part I: Reparations for Victims – Key Th emes and Concepts Victims’ Rights to a Remedy and Reparation: Th e New United Nations Principles and Guidelines Th eo van Boven ..........................................................................................19 Massive Trauma and the Healing Role of Reparative Justice Yael Danieli ................................................................................................41 Reparation Programmes: A Gendered Perspective Anne Saris and Katherine Lofts ..................................................................79 Part II: Reparations and the Holocaust Th e Claims Conference and the Historic Jewish Eff orts for Holocaust-Related Compensation and Restitution Gideon Taylor, Greg Schneider and Saul Kagan ........................................103 Th e Swiss Banks Holocaust Settlement Judah Gribetz and Shari C. Reig ...............................................................115 Part III: Th e Internationalised Context of ‘Mass Claims’ Overcoming Evidentiary Weaknesses in Reparation Claims Programmes Heike Niebergall ......................................................................................145 vi Contents International Mass Claims Processes and the ICC Trust Fund for Victims Edda Kristjánsdóttir .................................................................................167 Th e United Nations Compensation Commission Linda A. Taylor ........................................................................................197 Part IV: Reparations and International and Regional Courts Bringing Justice to Victims? Responses of Regional and International Human Rights Courts and Treaty Bodies to Mass Violations Lutz Oette ...............................................................................................217 Th e Concepts of ‘Injured Party’ and ‘Victim’ of Gross Human Rights Violations in the Jurisprudence of the Inter-American Court of Human Rights: A Commentary on their Implications for Reparations Clara Sandoval-Villalba ............................................................................243 Reparation for Gross Violations of Human Rights Law and International Humanitarian Law at the International Court of Justice Conor McCarthy .....................................................................................283 Reparations before the International Criminal Court: Th e Early Jurisprudence on Victim Participation and its Impact on Future Reparations Proceedings Carla Ferstman and Mariana Goetz ..........................................................313 Part V: Pursuing Extraterritorial Reparations Claims – Lawyers’ Perspectives Th e Prosecution of International Crimes and the Role of Victims’ Lawyers Luc Walleyn .............................................................................................353 Compensation for the Victims of Chemical Warfare in Iraq and Iran Liesbeth Zegveld ......................................................................................369 Part VI: Reparations in National (Territorial) Contexts Reparations and Victim Participation: A Look at the Truth Commission Experience Cristián Correa, Julie Guillerot and Lisa Magarrell ...................................385 Contents vii Th e Argentinean Reparations Programme for Grave Violations of Human Rights Perpetrated during the Last Military Dictatorship (1976–1983) Andrea Gualde and Natalia Luterstein ......................................................415 Reparations for Victims in Colombia: Colombia’s Law on Justice and Peace Julián Guerrero Orozco and Mariana Goetz .............................................435 Policy Challenges for Property Restitution in Transition – the Example of Iraq Peter Van der Auweraert ...........................................................................459 Reparations in Dayton’s Bosnia and Herzegovina Carla Ferstman and Sheri P. Rosenberg .....................................................483 Goats & Graves: Reparations in Rwanda’s Community Courts Lars Waldorf .............................................................................................515 Still not Talking: Th e South African Government’s Exclusive Reparations Policy and the Impact of the R30,000 Financial Reparations on Survivors Oupa Makhalemele ..................................................................................541 Index ...........................................................................................................567 Foreword By Judge Elizabeth Odio-Benito* Wars and armed confl icts are deeply embedded in the history of humankind. Th is has been particularly true during the 20th century and today, where national and international armed confl icts have terrorised and killed millions, mostly civilians, and among them mainly women and children. However, the victims of international crimes had neither a voice beyond that of a witness nor the right to demand reparations for what happened to them or to their loved ones. Th e only exception was in the case of some survivors of the Holocaust that received some reparations from the German government and other sources. Th e ad-hoc tribunals for the Former Yugoslavia and Rwanda had already been operating for several years when the Rome Statute, and later the Rules of Procedure and Evidence, were adopted in 1998. Th eir international criminal procedures were limited to the prosecution of perpetrators, having no mandate to deal with victims beyond their role as witnesses. Th is was debated in the year 2000 as there was the possibility to grant reparations to victims but no formal agreement was reached and no reparations ever given. Work conducted by aca- demics and non-governmental organizations based on personal interviews with those who survived the war in the Former Yugoslavia, have demonstrated that for many the economic situation, especially for women who were raped, enslaved or traffi cked, is worse than it was before the war. For women who were raped it was not until many years later that some of them received recognition as war victims which entitled them to a small pension from the State. Our notions of judicial justice are incomprehensible for those who are unable to survive without a permanent place to live in, without enough money to take care of their families’ basic needs and without full recognition of the atrocities committed against them. Th is was recognised by the drafters of the Rome Statute who established a Court that is signifi cantly diff erent from any previous international criminal * Judge assigned to the Trial Division, International Criminal Court. Th e views included in this Foreword are those of the author and in no way refl ect those of the International Criminal Court. Ferstman et al. (eds.), Reparations for Victims of Genocide, War Crimes and Crimes against Humanity, pp. 1–4. © 2009 Koninklijke Brill NV. Printed in the Netherlands.
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